EXHIBIT 4.13


 





ENGINEERING,
PROCUREMENT AND CONSTRUCTION AGREEMENT


 


Dated
as of ____, 2015


 


by
and between


 


PANASONIC
CORPORATION OF NORTH AMERICA, 

ACTING THROUGH ITS DIVISION 

PANASONIC ENTERPRISE SOLUTIONS COMPANY


(Contractor)


 


and




Green Earth Developers LLC


 


(Subcontractor)


 


NORTH
CAROLINA


 


For
Projects Specified in Exhibit G


 






    	 



    	 



    

 


TABLE
OF CONTENTS


 





	 	Page
	 	 
	Article 1 DEFINED TERMS;
    CONTRACT INTERPRETATION	5
	1.1	Definitions	5
	1.2	Rules of interpretation	13
	1.3	Contract Documents	13
	1.4	Conflicting Provisions	13
	Article 2 THE WORK	14
	2.1	Scope of Work	14
	2.2	Design	14
	2.3	Project Schedule	16
	2.4	Progress Meetings	16
	2.5	Standard of Performance	16
	2.6	Subsidies; Incentives; Tax Credits	16
	2.7	Change Orders	17
	2.8	Work Site Supervision; Safety; Maintenance
    of Site	21
	2.9	Delay	21
	2.10	Hazardous Materials	22
	2.11	Force Majeure Events	23
	2.12	Subcontractors	23
	2.13	Security and Background Screening	23
	Article 3 COMMISSIONING;
    PERFORMANCE TESTING	24
	3.1	System Commissioning Tests	24
	3.2	System Performance Tests	24
	Article 4 COMPLETION AND
    ACCEPTANCE OF THE WORK	24
	4.1	Notices of Substantial Completion and
    Final Completion	24
	4.2	Punch List	25
	4.3	Mechanical Completion	26
	4.4	Substantial Completion	27
	4.5	Final Completion	28
	Article 5 CONTRACT PRICE;
    PAYMENTS	29
	5.1	Contract Price	29
	5.2	Payments of the Contract Price	29
	5.3	Invoices	30
	5.4	Disputed Invoices	30
	5.5	Payment to Subcontractors and Suppliers	30
	5.6	Title	31
	5.7	Risk of Loss	31
	5.8	Customer Credit Support	31
	5.9	Liquidated Damages	31
	5.10	Adjustment to Contract Price for Cost
    Savings	
	Article 6 TERM	33
	6.1	Generally	33
	6.2	Termination for Cause by Customer	33
	6.3	Contractor’s Rights and Remedies	34
	6.4	Termination for Cause by Contractor	35
	6.5	Contractor’s Rights and Remedies	35



 






    	 



    	 



    

 


	Article 7 INDEMNITY	36
	7.1	Indemnification by Contractor	36
	7.2	Indemnification by Customer	36
	7.3	LIMITATION OF LIABILITY	37
	Article 8 INSURANCE	37
	8.1	Customer’s Insurance	37
	8.2	Contractor’s Insurance	37
	Article 9 REPRESENTATIONS
    AND WARRANTIES	40
	9.1	Organization and Qualification	40
	9.2	Power and Authority	40
	9.3	No Conflict	40
	9.4	Validity and Binding Effect	40
	9.5	Contractor Licensed	40
	9.6	Contractor Patents	40
	9.7	Site Control	40
	Article 10 CUSTOMER’S
    RESPONSIBILITIES	41
	10.1	Access to Site	41
	10.2	Information Regarding the Site	41
	10.3	Permits	41
	10.4	Compliance with Laws and Agreements	41
	10.5	Cooperation	41
	10.6	Data Transmission	41
	Article 11 CONTRACTOR WARRANTIES	42
	11.1	Warranty of Title	42
	11.2	Defect Warranty	42
	11.3	Design Warranty	42
	11.4	Exclusions	42
	11.5	Pass-Through Manufacturers’ Warranties	43
	11.6	Warranty Claim Process; Repair or Replace	43
	Article 12 CONFIDENTIALITY
    AND PUBLICITY	44
	12.1	Confidentiality	44
	12.2	Publicity	45
	Article 13 MISCELLANEOUS	45
	13.1	Notices	45
	13.2	Independent Contractor	45
	13.3	Authorized Representatives	45
	13.4	Entire Agreement; Amendment	45
	13.5	Assignment	45
	13.6	No Waiver	46
	13.7	Survival	46
	13.8	Governing Law	46
	13.9	Dispute Resolution	46
	13.10	WAIVER OF JURY TRIAL	47
	13.11	Execution in Counterparts	47
	13.12	Ownership of Designs	47
	13.13	Final Drawings	47
	13.14	Customer’s Limited License Upon
    Payment in Full	47




 






    	 



    	 



    

 





	EXHIBITS:	 
	 	 
	Exhibit A -	Pricing Structure
	Exhibit B -	Liquidated Damages Schedule
	Exhibit C -	Design Materials  Listed Pre-Approved
    Suppliers and Subcontractors
	Exhibit D -	Spare Parts
	Exhibit E -	Applicable Permits
	Exhibit F -	Subcontractor Scope of Work
	Exhibit G -	Project Description
	Exhibit H -	Project Schedule
	Exhibit I -	System Commissioning and Performance
    Tests







 






    	 



    	 



    

 


ENGINEERING,
PROCUREMENT AND CONSTRUCTION AGREEMENT


 


This
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT (“Agreement”),
dated as of __________ (“Effective Date”), is entered into by and between Panasonic
Corporation of North America, acting through its division Panasonic Enterprise Solutions
Company, a Delaware corporation, with offices at Two Riverfront Plaza, 5th Floor, Newark,
NJ 07102 (“Contractor”) and Green Earth Developers LLC, with main offices located at 547
W. Charles St. Suite 100 Matthews, North Carolina 28105 (“Subcontractor”), (each a “Party”
and collectively, the “Parties”).


 


RECITALS:


 


WHEREAS,
Contractor is developing photovoltaic solar power generating plants (each a “System”
and together “Systems”), as more fully described in the Contract Documents (as such term is defined herein)
to be located at the Site (as such term
is defined herein);


 


WHEREAS,
Contractor wishes to engage Subcontractor to design, construct and install the
System at the Site; and


 


WHEREAS,
Subcontractor wishes to provide such design, construction and installation services, all in accordance with the terms and conditions
set forth in this Agreement.


 


NOW
THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:


 


ARTICLE
1

DEFINED TERMS; CONTRACT INTERPRETATION


 


1.0          Definitions.


 


“Agreement”
has the meaning given to such term in the preamble hereto.


 


“Applicable
Law” means any applicable federal, state or local act, law, statute, ordinance, building
code, rule, regulation, Permit, order, judgment, consent or approval of any Governmental
Authority having jurisdiction over the Site, the System, or the performance of the Work.


 


“Applicable
NC Tax Credit Statute and Guidance” means North Carolina statute G.S. § 105-129.16A,
as amended, and the guidance published by the North Carolina Department of Revenue on September 29, 2015 with respect thereto
(entitled “Important Notice Regarding the Delayed Sunset Date for Renewable Energy Projects that are Substantially Completed
on or Before January 1, 2016”). Without limiting the generality of the foregoing, the percentage completion of the System
shall be determined by the independent engineer that is providing the report with respect to the percentage completion of the
System, as required under the foregoing statute, reflecting the following project construction weightings:


 






    	5



    	 



    

 


	Phases
    of Construction 	 	Percentage
    of Project
	Design,
    Engineering & Site Preparation	 	 	5	%
	Posts
    Installed	 	 	20	%
	Rack
    Mounted on Posts	 	 	15	%
	Panels
    Mounted	 	 	20	%
	Inverters/Transformers
    Set	 	 	30	%
	Underground
    cables, DC & Med. Voltage	 	 	5	%
	Combiner
    Boxes and String Wiring	 	 	5	%
	Total	 	 	100	%




 





“Authorized
Representative” has the meaning set forth in Section 2.7(c).


 


“Business
Day” means any day other than a Saturday, Sunday or a legal holiday in the State in which the Site is located. In the
event a time period set forth in this Agreement or the Scope
of Work expires on a Day that is not a Business Day, such period shall be deemed to expire
on the next Business Day thereafter.


 


“Change
Order” has the meaning set forth in Section 2.7(a).


 


 “Change
Order Request” has the meaning set forth in Section 2.7(a).


 


“Close-out
Documents” has the meaning set forth in Section 4.2.


 


“Commencement
Date” means the first date on which Subcontractor commences performance of
the Work at any Site.


 


“Confidential
Information” has the meaning set forth in Section 12.1. 


 


“Contract
Documents” has the meaning set forth in Section 1.3.


 


“Contract
Price” has the meaning set forth in Section 5.1.


 


“Contractor”
has the meaning set forth in the preamble hereto.


 


“Contractor
Hazardous Materials” has the meaning set forth in Section 2.10.


 


“Contractor
Parties” has the meaning set forth in subsection (a) of Section 1.1


 


“Contractor
Taxes” means any and all Taxes imposed under Applicable Law in respect of the
income or gross income of Contractor, the Contractor’s office location or Contractor’s employment
of its employees.


 






    	6



    	 



    

 


“Contractor
Caused Delay” means any delay caused by any breach by Contractor of the terms and conditions of this Agreement,
the unexcused failure by Contractor to perform its obligations
hereunder or Contractor’s negligence or willful misconduct.


 


“Contractor
Financing Parties” means (a) any and all third party lenders (that is, unaffiliated
with Contractor) providing senior or subordinated construction, interim or long-term debt
financing or refinancing to Contractor, including without limitation, pursuant to a sale- leaseback
financing; and/or (b) any and all third party equity investors (that is, unaffiliated with Contractor),
directly or indirectly, in Contractor providing tax equity investment or leveraged lease-financing
or refinancing; in each case in connection with the System, and, in each case, any trustee
or agent acting on behalf of such lenders or investors


 


“Contractor
Indemnified Parties” has the meaning set forth in Section 7.1(a).


 


“Contractor
Permits” means the Permits for which Contractor is responsible, as specified in the
Scope of Work in addition to any other permits not specified in the Scope of Work that may be
required for the siting, ownership, operation or maintenance of the System


 


“Contractor
Person” has the meaning set forth
in Section 2.7(c).


 


“Customer”
for each System has the meaning set forth in the respective Project Agreements and listed in Exhibit G.


 


“Day”
means a calendar day unless it is specified that it means a Business Day.”


 


“Defect
Warranty” means the warranty provided by Subcontractor pursuant to Section 11.2. 


 


“Design
Materials” means the System and System component description, mechanical
and electrical drawings, detailed Project Schedule and related documents attached
as Exhibit C and
submitted or to be submitted, including any amendment/modification made thereto pursuant to Section 2.7, in connection with any
System after the Effective Date as contemplated
in Section 2.2.


 


“Design
Warranty” means the warranty provided by Subcontractor pursuant to Section 11.3


 


“Disclosing
Party” has the meaning set forth in Section 12.1


 


“80%
Completion Condition” has the meaning set forth in Section 4.3(j).


 


“Effective
Date” means the date set forth in the preamble hereto


 


“Environmental
Laws” means any and all Applicable Laws and Permits issued, promulgated
or entered into by any Governmental Authority relating to the environment or the treatment,
storage, disposal, management, release or threatened release of Hazardous Materials, in
each case as in effect on the date hereof and as may be issued, promulgated or amended from time
to time.


 






    	7



    	 



    

 


“Environmental
Reports” means the Phase I environmental site assessment(s) with respect to
the Site or any other written materials addressing environmental conditions at the Site listed in Schedule
10.2 attached to this Agreement.


 


“Expected
Capacity” means the monthly AC generation values set forth in Table 1 of Exhibit I attached hereto


 


“Final
Completion” means satisfaction
by Contractor or waiver by Contractor of all of the conditions
for Final Completion set forth in Section 4.4


 


“Final
Completion Date” has the meaning set forth in Section
4.1


 


“Final
Completion Deadline” has the meaning set forth in Section 2.3.


 


“Final
Completion Notice” means the notice that shall be issued by Contractor upon Final Completion as provided in Section
4.1.


 


“Final
Designs” has the meaning set forth in Section 2.2 (c).


 


“Force
Majeure Event” means any
event, condition or circumstance or combination thereof
that adversely affects or causes delay in or failure of performance by either Party of its obligations
under this Agreement or, in the case of Subcontractor, increases its costs to complete the
Work to an extent that causes material harm, such event, condition or circumstance: 


 


(a)
is beyond the reasonable control of the
affected Party; 


 


(b)
is not the result of any willful misconduct,
negligent acts, omissions or fault of the affected Party (or any third party over whom the affected Party has control, including,
in the case of Subcontractor, any Sub- subcontractor
or vendor, except to the extent that the performance by such Sub-Subcontractor or vendor
would itself be excused as a result of Force Majeure Event if such performance were undertaken
directly by Subcontractor); and


 


(c)
the effects of which cannot reasonably be prevented, overcome or avoided by the exercise
of due diligence in observance of Industry Standards by the affected Party. The following
(to the extent consistent with the foregoing) are examples of Force Majeure Events:
Unforeseen Site Conditions; acts of God; act of war, rebellion, sabotage or terrorism;
fires, floods, explosions, hurricanes, typhoons, winds in excess of ninety (90) mph,
tsunamis, volcano eruptions, earthquakes, tornados excessive rain that makes work on the site impractical, or other extreme unanticipated
natural conditions; industry-wide or non-Site specific strikes; and compliance with
an order or request of any Governmental Authority and acts or omissions of any Governmental
Authority after the Effective Date (including the adoption or change in any Applicable Law and, despite such
Party’s reasonable and diligent efforts to obtain Permits, delays in permitting).


 






    	8



    	 



    

 


Notwithstanding
the foregoing, the following shall not constitute a “Force Majeure Event” for the
purposes of this Agreement: 


 


	 	(i)	inability or failure by a Party to make payment for any reason, including economic hardship or lack of funds, 
	 	(ii)	failure by a third party to perform, except to the extent that the performance by such third party would itself be excused as a result of Force Majeure Event, 
	 	(iii)	non-industry- wide strikes or other labor actions, and 
	 	(iv)	labor, materials, supplies or equipment shortages or late deliveries, except to the extent that the shortage or late delivery is itself caused by a Force Majeure Event.




 


“Geotech
Report” means the geotechnical report or reports of the sites furnished by Contractor to Subcontractor.


 


“Governmental
Authority” means any federal, state, local or other governmental, regulatory
or judicial agency, authority, public utility, or other entity having legal jurisdiction over
the Site or the System.


 


“Hazardous
Material” means all pollutants, contaminants and chemicals and any other carcinogenic,
ignitable, corrosive, reactive, toxic or otherwise hazardous substances (and materials and
substances containing or contained by the foregoing) subject to regulation, control or
remediation under applicable Environmental Laws.


 


“Industry
Standards” shall mean those standards of care and diligence normally practiced by
an experienced solar engineering, construction and installation firms in performing services of a
similar nature in the United States of America and in accordance with good engineering design practices,
applicable Permits, and other standards established for the Work. Industry Standards are
not intended to be limited to the optimum method to the exclusion of all others, but rather to include
a spectrum of reasonable and prudent methods. In the event of any conflict between the terms
of this Agreement and Industry Standards, the terms of this Agreement shall control over any
inconsistent Industry Standards.


 


“Insolvency
Event” with respect to a Person means such Person becomes insolvent, or institutes or has instituted against
it a case under Title 11 of the United States Code, is unable to pay
its debts as they mature or makes a general assignment for the benefit of its creditors, or if a receiver
is appointed for the benefit of its creditors, or if a receiver is appointed on account of insolvency.


 


“Limited
Notice to Proceed” has the meaning set forth in Section 2.3.


 


“Liquidated
Damages Schedule” means the schedule of liquidated damages attached hereto
as Exhibit B.


 


“Measured
Capacity” means the actual AC generation capacity for each System or the Systems, as defined in Section 5.3 of Exhibit
I.


 


“Mechanical
Completion”
means satisfaction
by Contractor or
waiver by
Customer of all
of the conditions
for Mechanical
Completion set
forth in
Section 4.3.


 






    	9



    	 



    

 


“Mechanical
Completion” shall have the meaning as set forth in Section 4.3. 


 


“Mechanical
Completion Date” has the meaning set forth in Section 2.3.


 


“Mechanical
Completion Notice”
means the
notice that
shall be
issued by
Contractor upon Mechanical
Completion as
provided in
Section 4.1.


 


“Notice
to proceed” has the meaning set forth in Section 2.3.


 


“O&M
Agreement” means the Operations and Maintenance Agreement between Customer
and Contractor entered into on or about the date hereof.


 


“Parties”
means Contractor and Subcontractor collectively, and each of them may be referred to
as a “Party.”


 


“Performance
Target” for each System means 100% of the Expected Capacity, as defined herein and more fully described in Table 1 of
Exhibit I attached hereto; in connection therewith, “Acceptable Performance Target” shall mean 97% of the Performance
Target, and (y) “Minimum Performance Target” shall mean 94% of the Performance Target.


 


“Permit“
means any federal, state, regional or local license, authorization, certification, filing,
recording, permit or other approval with or of any Governmental Authority, including any environmental,
construction or operating permit that is required by Applicable Law or that is otherwise
necessary for the performance of the Work.


 


“Person”
means any individual, corporation, partnership, company, joint venture, association,
trust, unincorporated organization or Governmental Authority.


 


“Progress
Billing” means an invoice submitted to Contractor by Subcontractor on the 15th or 30th day of
each calendar month (or, if such a date is a holiday, then the first Business Day thereafter) (each a “Billing Date”)
for Work performed hereunder and not previously invoiced through the Billing Date.


 


“Progress
Payment” means payment for any Progress Billing rendered in accordance with this Agreement. All Progress Payments shall
be made on or prior to the 30th day following the Billing Date (or the first Business Day thereafter if such date is
not a Business Day) to which it pertains. 10% retention will be held on such billings. Retention will be released no later than
fifteen (15) days after Final Completion as defined in Section 4.5 of this agreement.


 


“Project”
means those certain Systems to be installed at the sites described in Exhibit G, each
a “Site” and collectively “Sites”..


 






    	10



    	 



    

 


“Project
Agreements” means 


 


		(a)	the
                                         power purchase agreement (or similar arrangement) with
                                         the off-taker to which Customer or the Project Company, as applicable, is a party; 
		(b)	the
                                         lease(s),
                                         easement(s), access agreements, crossing agreements or other similar real property arrangements
                                         with respect to the Sites to which Customer or Project Company, as applicable, is a
                                         party, in each case in connection with the System and that has been provided to Contractor
                                         prior to
                                         the Effective Date (or if not in place as of the Effective Date, reasonably in advance
                                         of the Notice to
                                         Proceed); 
		(c)	the
                                         Environmental Report(s) (or similar agreement) with respect to the Sites to which
                                         Customer or Project Company, as applicable, is a party, in each case in connection with
                                         the Systems;
                                         
		(d)	Interconnection
                                         Agreement for the Systems between applicable public utility to which Customer or the
                                         Project
                                         Company, as applicable, is a party; 
		(e)	any
                                         Conditional Use Permit (or similar agreement) with
                                         respect to the Sites to which Customer or Project Company, as applicable, is a party,
                                         in each case in connection with the System



 


“Project
Company” means each of companies set forth in Exhibit G.


 


“Project
Schedule” means the schedule for the performance of the Work by Subcontractor, set
forth in Exhibit H, as related to the Scope of Work, and further defined and read in conjunction with Section 2.3 hereunder.


 


“Punch
List” has the meaning set forth in Section 4.2.


 


“Receiving
Party” has the meaning set forth in Section 12.1.


 


“Scope
of Work” means the scope of work attached as Exhibit F, which comprises the layout, specifications, description,
Work, materials, Project Schedule, Permits, Contract Price and
all other information necessary to design, engineer and construct the Systems at the Sites and perform all of the Work with respect
thereto compliant with Exhibit I, and the Design Materials.


 


“Specifications”
means the specifications with respect to each System, as set forth in the Scope
of Work and as provided in the Design Materials.


 


“Subcontractor”
has the meaning given to such term in the preamble hereto.


 


“Subcontractor
Indemnified Parties” has the meaning set forth in Section 7.2.


 


“Subcontractor
Permits” means the Permits for which Subcontractor is responsible, as specified
in the Scope of Work in addition to any other permits not specified in the Scope of Work
that may be required for the construction of the System.


 






    	11



    	 



    

 


“Subcontractor
Taxes” means any and all Taxes imposed under Applicable Law in respect of
the income or gross income of Subcontractor, the Subcontractor’s office location or Subcontractor’s
employment of its employees.


 


“Subcontractor
Warranty” means the Defect Warranty and the Design Warranty.


 


“Sub-Subcontractor”
means any Person retained, directly or indirectly, by Subcontractor in
each case as an independent contractor to perform services for Subcontractor in discharge of a portion
of the Work, excluding Suppliers.


 


“Substantial
Completion” means satisfaction by Subcontractor & Contractor or waiver by Customer
of all of the conditions for Substantial Completion set forth in Section 4.4.


 


“Substantial
Completion Date” has the meaning set forth in Section 4.1.


 


“Substantial
Completion Deadline” has the meaning set forth in Section 2.3.


 


“Substantial
Completion Notice” means that notice provided by Subcontractor certifying that
the System has achieved Substantial Completion as provided in Section 4.1.


 


“Supplier”
means a Person of any tier of supply that supplies equipment or materials and is
not supplying services to Subcontractor at the Site in discharge of a portion of the Work.


 


“System”
means any solar photovoltaic system identified in the Scope of Work compliant with
Exhibit I (together “Systems”).


 


“System
Commissioning Tests” means the tests described in Exhibit I attached to this Agreement,
conducted with respect to the commissioning of any System in accordance with Exhibit
I attached to this Agreement.


 


“System
Performance” means the actual performance and reliability, including without limitation the Measured Capacity, of any System.


 


“System
Performance Tests” means the tests procedures and methods described in Exhibit I attached to this Agreement,
conducted with respect to the determination of performance Measured Capacity and reliability of any System, in accordance
with Exhibit I attached to this Agreement.


 


“Taxes”
means any and all taxes, charges, duties, imposts, levies and withholdings imposed
by any Governmental Authority, including sales tax, use tax, income tax, withholding taxes,
corporation tax, franchise taxes, margin tax, capital gains tax, capital transfer tax, inheritance
tax, value added tax, customs duties, capital duty, excise duties, betterment levy, stamp
duty, stamp duty reserve tax, national insurance, social security or other similar contributions,
and any interest, penalty, fine or other amount due in connection therewith, but not including
costs payable to a Governmental Authority incurred in connection with the application for
and issuance of any applicable Permit.


 






    	12



    	 



    

 


“Unforeseen
Site Conditions” means 


 


		(a)	any
                                         geological or geotechnical conditions at the Site that are not disclosed in the Geotech
                                         Report(s) or 
		(b)	any
                                         other special conditions at the Site that are not disclosed in any other report(s) or
                                         account(s) that are made available by Contractor or Customer to this Subcontractor in
                                         connection thereto, or that a reasonably prudent contractor undertaking construction
                                         of a solar facility similar to the Work would not have discovered in the course of a
                                         reasonable investigation of the Site prior to commencement of construction,
                                         



 


“Work”
has the meaning set forth in Section 2.1.


 


“Work
Product” has the meaning set forth in Section 13.11.


 


1.2             Rules
of interpretation. Unless otherwise manifestly required by the context in which any term appears:


(a)
            Capitalized terms used in this Agreement shall have
the respective meanings set forth in
this Section 1; 


(b)
           The singular shall include the plural and vice versa; 


(c)
         
  The word “including” (or “include”) shall mean “including, without limitation,” in all
instances; 


(d)
           Reference’s to “Sections”,
“Schedules” and “Exhibits” shall be to sections, schedules and exhibits
of this Agreement; 


(e)            The
words “herein”, “hereof” and “hereunder” shall refer to this Agreement
(or the certificate or other document in which they are used) as a whole and not to any
particular section or subsection hereof (or such certificate or document); and 


(f)
            Reference’s to this
Agreement shall include a reference to all schedules and exhibits hereto, as the same may be amended,
modified or supplemented from time to time, 


(g)           
Word’s “shall” and “will” have the same
meaning; 


(h)
           Reference’s to any Person include that Person’s
successors and assigns (without affecting
any limitations, restrictions or prohibitions on assignment); 


(i)            “or”
is used in the inclusive sense of “and/or”;
and 


(j)
           Headings are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.


 


1.3             Contract
Documents. The “Contract Documents” consist of the following
documents:


 


(a)    All
written, executed and effective modifications, amendments, including without limitation the Final Designs, and all written
and effective Change Orders to this Agreement;


(b)   this
Agreement;


(c)   all
Exhibits attached hereto; and


(d)    the
Design Materials after the same have been approved pursuant to Section 2.2.


 


1.4             Conflicting
Provisions. In the event of any conflict or inconsistency between any
of the Contract Documents, the document appearing higher in the list of Contract Documents set
forth in Section 1.3 (where applicable) will prevail and be given priority. Subject to the foregoing,
the several documents and instruments forming part of this Agreement are to be taken as
mutually explanatory of one another and in the case of ambiguities or discrepancies within or between
such parts the same will be explained and interpreted, if possible, in a manner which gives
effect to each part and which avoids or minimizes conflicts among such parts. No oral representations
or other agreements have been made by the Parties except as specifically stated in
the Contract Documents.


 






    	13



    	 



    

 


ARTICLE
2

THE WORK


 


2.1            
Scope of Work / Price.


 


(a)          Subcontractor
shall provide, on a turnkey basis and at
the price set forth in Section 5.1(a) of this Agreement, all professional design and
engineering services, equipment procurement not furnished by owner, supervision, labor, materials,
supplies, equipment, tools, construction equipment and machinery, utilities, transportation,
and procurement of Subcontractor Permits in conformity with the Scope of Work compliant
with Exhibit I, and other facilities, items and services, in each case to the extent necessary
to design, install, procure, construct and complete the System in accordance with the Specifications
and the Contract Documents (the “Work”).


 


(b)          Subcontractor
shall have the responsibility for and sole control over the engineering,
design and construction means, methods, techniques, sequences, and procedures and for coordination of all portions of the Work
unless and to the extent otherwise provided herein.
Subcontractor and its Sub-Subcontractors will perform all Work efficiently and with the requisite
expertise, skill, competence, resources and care to satisfy the requirements of the Contract Documents, the Project Agreements,
Industry Standards and all Applicable Law in effect
at the time the Work is performed.


 


(c)         While
performing the Work at the Site, Subcontractor will comply with the safety, access and operational
restrictions established by the Customer, or if Customer leases the Site from a third
party, by the owner of the Site pursuant to the applicable Project Agreement (or
any other applicable offtake agreement, lease or similar agreement), a copy of which is attached
hereto as Exhibit F and any other requirements imposed by Applicable Law.


 


2.2             Design.


 


(a)         Subcontractor
shall perform design and engineering services, using qualified architects, engineers and
other professionals approved by Contractor.


 


(b)        Subcontractor
shall prepare and submit to Contractor all designs, drawings and specifications
for each System and other work required to prepare the Sites as necessary for completion of the Work, in accordance with the
Scope of Work set forth in Exhibit F attached hereto. 


 






    	14



    	 



    

 


(c)         Contractor
shall promptly review the documents so submitted and provide any comments in writing
to Subcontractor within ten (10) Business Days after receipt of the documents. If Subcontractor determines, in its reasonable
judgment, that one or more of Contractor’s comments are not consistent with the Scope
of Work or that incorporating such comments in the Specifications would increase the
Contract Price or adversely (from Subcontractor’s standpoint) affect the Project
Schedule or affects Subcontractor’s ability to provide the Warranties or to
comply with any other provision of this Agreement, Subcontractor shall promptly (but in any
event within ten (10) Business Days) notify Contractor of Subcontractor’s objections or concerns
regarding such comments. Contractor and Subcontractor shall use commercially reasonable
efforts to resolve their differences at the earliest possible date (but in any event within ten (10) business days) as to the
comments not agreed to by the Parties. Subcontractor shall incorporate Contractor’s
comments, to the extent agreed upon by the Parties or such comments are determined to be reasonable following resolution
of the dispute, into the final designs, drawings and specifications, as applicable. Such
final designs, drawings, and specifications, provided they are acceptable to Contractor
(the “Final Designs”), shall be part of the Contract Documents used for the Work
and, if and to the degree that such Final Designs are inconsistent with the Specifications, the Final Designs shall constitute
an amendment to the Specifications. Subcontractor shall make best efforts to inform Contractor in writing of material deviations
from the original Contract Documents that are included in the Final Designs prior to Contractor’s approval thereof. If Contractor
fails to provide comment on designs, drawings and specifications within ten (10) Business Days of submission by Subcontractor,
documents shall be deemed accepted.


 


(d)
        Subcontractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by Contractor’s
approval of the designs, drawings, specifications, or similar submittals unless Subcontractor has specifically informed Contractor,
in writing or in the submittal(s), of such deviation at the time of the submittal and Contractor has given written approval of
the deviation or failed, within ten (10) Business Days after such submittal, to provide a written objection to such deviation
by Subcontractor. 


 


(e)
         Subcontractor will maintain a current,
complete set of drawings and Specifications
at the Site;


 


(f)     
    Subcontractor represents and
warrants to Contractor that all design services
performed by Subcontractor and its Sub-subcontractors will be performed in accordance
with the standard of care and skill accepted for the design of solar power generation
facilities in the state where the Site is located during the relevant period of time. Any professional
services to be performed as part of the Work for which Applicable Law requires a license or registration will be performed
by duly licensed or registered personnel; and


 


(g)   
     Subject to Section 2.2(c) and 2.2 (d) above, with respect to design and engineering, no
review of, approval of, or comments
on, any information provided to Contractor by Subcontractor or any Sub-subcontractor,
and no failure by Contractor to review or comment on any such information, shall
be deemed to be an acceptance of the Work or any portion thereof by Contractor, nor to cause a
transfer of responsibility for such information to Contractor. Failure of Contractor or its representatives
to discover errors or omissions in information that it has reviewed, or to inform Subcontractor that Sub-subcontractors or
others are not in compliance with the information, or to direct or enforce procedures for complying with such information,
shall not relieve Subcontractor from
its sole responsibility to perform and complete the Work in accordance with the Contract Documents.


 






    	15



    	 



    

 


2.3           
Project Schedule. Without affecting the right of Subcontractor to enter or access the Site for the purpose
of conducting diligence activities, and without affecting design or engineering activities to
be performed off Site prior to the commencement of physical work at the Site, Subcontractor shall
not commence performance of the Work at the Site until Contractor gives written notice to
Subcontractor authorizing it to commence (the “Notice to Proceed” or “NTP”). At any time
following the Effective Date and before issuance of the NTP, Contractor may at Contractor’s
sole discretion, issue to Subcontractor a limited notice to proceed (“Limited Notice to
Proceed” or “LNTP”). Subcontractor shall perform its obligations
under this Agreement in a diligent and expeditious manner and use its commercially reasonable efforts to perform the Work
in conformity with the Project Schedule. Subcontractor shall promptly notify Contractor in
writing of any event or circumstance that may materially adversely impact the Project Schedule and,
to the extent the impact is not due to a Force Majeure Event, Unforeseen Site Condition or a
Contractor Caused Delay, Subcontractor shall, at its expense, be responsible for taking all commercially
reasonable actions, including the addition of manpower or extended work schedules or the procurement of additional equipment,
supplies or manpower, necessary to alleviate adverse impacts therefrom, including without
limitation a failure to meet the respective deadlines for Mechanical and Substantial Completion of each System. Subject to a Force
Majeure Event or Contractor Caused
Delay, the Mechanical Completion Dates for each System shall be no later than the dates shown in Item 11 of Exhibit F (each a
“Mechanical Completion Deadline”);
provided that the 80% Completion Condition shall have been achieved no later than December 31, 2015,
the Substantial Completion
Dates for each System shall be no later than the dates shown in Item
11 of Exhibit F (each, a “Substantial
Completion Deadline”);
and the Final Completion Dates shall be no later than the dates shown in Item
11 of Exhibit F (each, a “Final
Completion Deadline”).



 


2.4      
   Progress Meetings. Subcontractor shall arrange and conduct
progress meetings with Customer and Contractor at least every two weeks following
the Commencement Date or otherwise as agreed between the
Parties.


 


2.5          Standard
of Performance. Subcontractor shall cause the Work to be performed in compliance with the Contract Documents, the
Project Agreements, Industry Standards, and Applicable
Law. Work that is required under Applicable Law to be performed by licensed personnel
shall be performed by duly licensed personnel.


 


2.6         
Subsidies; Incentives; Tax Credits.


 


(a)          Subcontractor
shall provide reasonable assistance and cooperation to Contractor in the preparation and submittal of all necessary
applications or other documentation
necessary for Contractor to participate in any subsidy, rebate or other incentive program
offered with respect to the System by any public utility or Governmental Authority, including
by providing to the Contractor for use by the Contractor or its designee, to the extent such
information is reasonably available to Subcontractor without incurring undue cost or burden the
following: (i) a written confirmation of the nameplate capacity of the System, and (ii) a cost breakdown
of all charges of Subcontractor’s actual construction and procurement costs (provided that
Subcontractor shall submit such cost breakdowns in good faith but shall bear no responsibility
for the calculation of cost basis). Subcontractor shall attend all Site verification visits
conducted by the applicable public utility or Governmental Authority and shall provide reasonable
assistance and cooperation to Contractor in satisfying the requirements of any subsidy, rebate
or other incentive program offered with respect to the System. Subcontractor’s obligations under
this Section shall expire on the first anniversary of Substantial Completion of the System unless this Agreement is
terminated earlier in accordance with the terms hereof.


 






    	16



    	 



    

 


(b)
                                      The
Parties acknowledge and agree that any benefits payable under any Subsidy, rebate or other incentive program offered
with respect to the System by any public utility
or Governmental Authority or any tax credits associated with the ownership of the System will be paid directly to, or shall
be retained by, Contractor. Subcontractor makes no representation or
warranty as to the amount or availability of any subsidy, rebate or other incentive with respect to
the System or tax credit or tax benefit or any other incentives or credits available or perceived or
believed to be available from any utility, Governmental Authority or any other Person, and
assumes no responsibility or liability in connection therewith. Contractor shall be solely responsible for determining the
availability of any such subsidy, rebate or other incentive or tax credit
or tax benefit (or other incentive) related to the System and negotiating with, or obtaining payment in respect thereof
from, any utility or Governmental Authority.


 


2.7             Change
Orders.


 


(a)         
Generally.
Each Party may, upon Notice to the other Party, request a
Change to the Specifications, the Work, or the System by issuing a written request (the “Change Order
Request”) which shall include:



 


	 	(i)	A reference to this Agreement, 
	 	(ii)	The requested change to
the Work, including the particular portion of the Work or Specification to be modified and
		(iii)	The
                                         effects (if any) of the Change Order Request, if agreed and implemented, on the Project
                                         Schedule,
                                         the Contract Price or, in the case of a Change Order Request by Contractor, other Subcontractor
                                         obligations under this Agreement. A “Change Order” means a written
                                         change to the Specifications,
                                         the Work, or the System that has been executed by both Contractor and Subcontractor
                                         in accordance with this Agreement (or that is required to be so executed pursuant to
                                         the terms hereof).



 


(b)        
Change
Order Costs and Pricing.


 


		(i)	If
                                         a Change Order Request contemplates a change in Contract Price,
                                         but no change in the size (in MW) of the System, such changes shall be calculated
                                         using the methodology consistent with the Parties’ determination of the Lump
                                         Sum.



 



    	17



    	 



    

 


		(ii)	If
                                         a Change Order Request contemplates a change in Contract Price
                                         due to an increase in size (in MW) of the System, the Contract Price shall be proposed
                                         by Subcontractor and agreed to by the Parties in accordance with this
                                         Section 2.7.
	 	 	 
	 	(iii)	If a Change Order Request contemplates a change
in Contract Price due to a decrease in size
(in MW) of the System, the Contract Price shall be proposed by Contractor
and agreed to by the Parties in accordance with this Section 2.7.




 


(c)         Subcontractor
Change Order Request. Subject to the limitations set forth, herein, Subcontractor
shall be entitled to a Change Order to the extent of any actual and demonstrable
impact to Subcontractor regarding the Work only upon the occurrence of any of the
following:


 


	 	(i)	any or all of the Work is delayed, suspended or accelerated by Contractor or any Person acting for or on behalf of Contractor (not including Subcontractor and any of its Sub-subcontractors or suppliers) (such Persons, together with Contractor, “Contractor Persons”), including Contractor’s failure to issue the Commencement Notice on or before the date specified for the Commencement Notice on the Project Schedule, other than by Contractor’s proper exercise of its rights under this Agreement related to default or failure to perform by Subcontractor, such as the exercise by Contractor of the right to have defective or non-conforming work corrected or re-executed;
	 	 	 
	 	(ii)	any breach by Contractor or any Contractor Person of the terms and conditions of this Agreement or the unexcused failure by any Contractor Person to perform its obligations hereunder;
	 	 	 
	 	(iii)	Subcontractor is not permitted access to the Site, including pursuant to the Project Agreements, except where Site access is prohibited due to Subcontractor’s breach of this Agreement;
	 	 	 
	 	(iv)	a change in Applicable Law occurring after the Effective Date that materially affects Subcontractor’s performance hereunder and the Scope of Work other than a change in Applicable Law which generally affects all of Subcontractor’s or its Subcontractors’ operations
	 	 	 
	 	(v)	the occurrence or effect of a Force Majeure Event (including the discovery of any Unforeseen Site Condition), as provided in Section 2.11 below, including Work required or expenses or costs incurred in connection with mitigating the effect of a Force Majeure Event; or to the extent it has the effect of delaying Work or increasing Subcontractor’s costs, or both, (i) breach by Contractor, Customer or the Project Company, as applicable, of its obligations under any of the Project Agreements, or (ii) amendment, modification or waiver of any Project Agreement (not expressly consented to by Subcontractor in writing); provided, that, in all cases, Subcontractor shall use commercially reasonable efforts, at no cost to Subcontractor, to overcome or mitigate the effects of such occurrence, including through reasonable reallocation of its personnel and resequencing of the Work. Notwithstanding anything to the contrary in this Section 2.7(c), the Subcontractor shall be entitled to an increase in the Contract Price pursuant to a Change Order resulting from the occurrence of events or circumstances provided for in clause (iv) or clause (v) of Section 2.7(c) only to the extent of the excess of the amount by which the Contract Price would, but for this paragraph, be increased as a result of the occurrence of events or circumstances provided for in clause (iv) or clause (v) of this Section 2.7.




 






    	18



    	 



    

 


(d)           Procedure.


		(i)	If
                                         Subcontractor is entitled to a Change Order pursuant to clause (c) above,
                                         Subcontractor shall submit a Change Order Request to Contractor for its review
                                         and approval within seven (7) Days of the date Subcontractor becomes aware
                                         of the facts and circumstances that permit Subcontractor to request a Change
                                         Order. Within five (5) Business Days after receipt of a Change Order Request
                                         and all accompanying information necessary to support and evaluate the Change
                                         Order Request from Subcontractor, Contractor shall either (i) execute and
                                         deliver such Change Order as provided by Subcontractor or (ii) request that certain
                                         amendments or modifications be made to such Change Order Request or request
                                         additional information required by Contractor for evaluation of the Change
                                         Order Request. Any Change Order Request that proposes an increase in the
                                         Contract Price must be accompanied by documentation supporting the amount of the
                                         proposed increase. Except in the case of an emergency, Work related to any Change Order
                                         Request shall not be performed until a Change Order
                                         is executed by both Parties (provided that any delay in executing a Change Order
                                         to which Subcontractor is entitled hereunder beyond the five (5) Business Day
                                         period referenced above may itself give rise to additional compensation or schedule
                                         relief for Contractor). If Contractor timely requests amendments or modifications to
                                         the Change Order Request, the Parties shall negotiate in good faith
                                         in an attempt to agree on the terms of a Change Order. All executed Change Orders
                                         are hereby incorporated by reference into this Agreement and the Scope of Work.



 



    	19



    	 



    

 


		(ii)	If
                                         Contractor is entitled to a Change Order pursuant to clause (b)(iii) above,
                                         Contractor shall submit a Change Order Request to Subcontractor for its review and approval
                                         within seven (7) Days of the date Contractor becomes aware of
                                         the facts and circumstances that permit Contractor to request a Change Order. Within
                                         five (5) Business Days after receipt of a Change Order Request and all accompanying
                                         information necessary to support and evaluate the Change Order Request from Contractor,
                                         Subcontractor shall either (i) execute and deliver such Change
                                         Order as provided by Contractor or (ii) request that certain amendments or
                                         modifications be made to such Change Order Request or (iii) request additional information
                                         required by Subcontractor for evaluation of the Change Order Request.
                                         Any Change Order Request that proposes a decrease in the Contract Price must
                                         be accompanied by documentation supporting the amount of the proposed decrease.
                                         Except in the case of an emergency, Work related to any Change Order
                                         Request shall not be performed until a Change Order is executed by both Parties (provided
                                         that any delay in executing a Change Order to which Contractor is
                                         entitled hereunder beyond the five (5) Business Day period referenced above may
                                         itself give rise to additional compensation or schedule relief for Contractor). If
                                         Subcontractor timely requests amendments or modifications to the Change Order
                                         Request, the Parties shall negotiate in good faith in an attempt to agree on
                                         the terms of a Change Order. All executed Change Orders are hereby incorporated
                                         by reference into this Agreement and the Scope of Work.



 


(e)           Equitable
Adjustment. If the Parties cannot agree on the cost or any other term
or condition of a Change Order Request, Subcontractor shall have no obligation to implement the
Change Order if such Change Order Request was requested by Contractor. Subcontractor shall
provide all documentation reasonably requested by Contractor for the review of any Change Order Request and, to the extent Contractor
determines Subcontractor is entitled to such Change Order Request, it shall pay such additional
amounts to Subcontractor. In the event the Parties disagree on Subcontractor’s
right or Contractor’s right to such a Change Order or the amount of such Change
Order, the Parties shall meet and discuss such equitable adjustment Change Order in
good faith; provided, however, Subcontractor shall not be eligible to claim
or receive a Change Order if based on any fault, error or omission of Subcontractor or Subcontractor’s breach of
this Agreement.


 


(f)          Emergencies.
In any emergency affecting the safety of persons or property,
Subcontractor will take commercially reasonable steps to prevent threatened damage, injury
or loss. Subcontractor will notify Contractor of the emergency as soon as practicable and in
any event within 48 hours after Subcontractor becomes aware of the emergency. The notice to
Contractor will describe the emergency in detail, including a reasonable estimation of its expected
duration and impact, if any, on the performance of Subcontractor’s obligations hereunder.
Any change in the Contract Price or the Project Schedule on account of the emergency work
will be determined as provided in this Section 2.7.


 






    	20



    	 



    

 


(g)          Change
Order Disputes. If the Parties are unable to reach agreement on a Change
Order, or the effects (if any) on the Project Schedule, Contract Price or, in the case of a Change
Order Request by Contractor, other Subcontractor obligations under this Agreement, then
either Party may submit the matter to dispute resolution pursuant to Section 13.9. Subcontractor
shall not suspend, in whole or in part, performance of this Agreement during any dispute
over any Change Order other than with respect to the Work that is the subject of the Change Order.
Contractor shall continue to pay undisputed amounts.


 


2.8              Work
Site Supervision; Safety; Maintenance of Site.


 


(a)         Subcontractor
shall supervise and direct all Work performed hereunder, and
shall be solely responsible for and have exclusive control over the means, methods, techniques,
sequences and procedures employed, subject to the terms and conditions of the Contract Documents.


 


(b)         Subcontractor
will, in accordance with Industry Standards, undertake security
measures at the Site at all times during the term of this Agreement to prevent vandalism, theft
and danger to the Site and personnel working at the Site. Subcontractor will, in accordance with
Industry Standards, conduct its operations in a manner so as to minimize the risk of loss, theft
or damage to the Site and the System, and shall repair or replace any damage or loss to the Site or the System arising from its
failure to comply with this Section 2.8(b).


 


(c)         Subcontractor
shall keep each Site reasonably free of materials and accumulation
of waste caused by the Work (to the extent generated by Subcontractor or anyone under
Subcontractor’s direct control) to permit Subcontractor to perform the Work efficiently,
safely and without interfering with the use
of adjacent portions of the Site or adjacent properties.
Reasonably promptly after Substantial Completion of the System, Subcontractor shall remove from the Site all waste, tools and
equipment introduced to the Site by Subcontractor (other than
tools and equipment required for achievement of Final Completion).


 


(d)          Subcontractor
shall comply with all Site rules and regulations and shall maintain the Site and conduct the Work in a manner that
does not violated the Project Agreements or
adversely affect or interfere in any material respect with the operations of any adjacent or nearby
business or property.


 


2.9           Delay. If Subcontractor’s performance hereunder is delayed by any event or circumstance
described in clause (c) of Section 2.7, Subcontractor shall not be deemed in breach of
this Agreement and shall be entitled to a Change Order in accordance with Section 2.7. Subcontractor
shall use reasonable diligence to avoid or minimize the cause of such delay and shall, as
soon as practicable, notify Contractor thereof.


 






    	21



    	 



    

 


2.10        
Hazardous Materials.


 


(a)        Subcontractor
Hazardous Materials.Subcontractor
shall have no responsibility for detection,
abatement, remediation, removal or disposal of any Hazardous Material,
except for (i) any release, disturbance or discharge of any Hazardous Materials existing at the
Site on, prior to, or after the Effective Date to the extent Subcontractor (or Subcontractor’s Sub subcontractors,
Suppliers, agents or other parties acting on behalf of Subcontractor) negligently or willfully
causes them to be released, disturbed or discharged, or (ii) all Hazardous Materials brought
onto, created at or introduced to the Site by Subcontractor (or Subcontractor’s Sub- subcontractors, Suppliers, agents,
or other parties acting on behalf of Subcontractor) (clauses (i) and
(ii) collectively, “Subcontractor Hazardous Materials”). In the event that Subcontractor becomes
aware of the presence of, or exposure of persons to, any Hazardous Material at the Site, Subcontractor shall inform Contractor
by Notice as soon as practicable. Contractor shall not be responsible for, and Subcontractor
shall bear full responsibility and remediation costs relating to Subcontractor Hazardous
Materials.


 


(b)         Hazardous
Materials Indemnification by Contractor. Contractor hereby specifically
agrees to indemnify, defend and hold Subcontractor and its Sub-subcontractors, and its
and their present and future direct or indirect parents, subsidiaries, affiliates, divisions, and their
respective directors, officers, employees, shareholders, agents, representatives, successors and
assigns harmless from and against any and all losses, liabilities, claims, demands, damages,
causes of action, fines, penalties, costs and expenses (including all reasonable consulting,
engineering, attorneys’ or other professional fees, whether or not a lawsuit or an administrative
enforcement action is brought), that they may incur or suffer by reason of: (i) the existence,
uncovering or unveiling, or any release of a Hazardous Material on, to or from the Site (except for Subcontractor Hazardous
Materials); (ii) any enforcement or compliance proceeding commenced by or in the name of
any Governmental Authority because of an alleged, threatened or actual violation
of any Applicable Law by Contractor or because of the presence on the Site of Hazardous Materials (except for Subcontractor
Hazardous Materials); and (iii) any action reasonably necessary to abate, remediate or prevent
a violation or threatened violation of any Applicable Law by Contractor or any other
Person, other than Subcontractor (or Subcontractor’s Sub-subcontractors, Suppliers, agents, or other parties acting on behalf
of Subcontractor), in connection with the foregoing.


 


(c)           Subcontractor
Hazardous Materials Indemnification by Subcontractor. Subcontractor
hereby specifically agrees to indemnify, defend and hold Contractor, its present and
future direct or indirect parents, subsidiaries, affiliates, divisions, and their respective directors,
officers, employees, shareholders, agents, representatives, successors and assigns harmless
from and against any and all losses, liabilities, claims, demands, damages, causes of action,
fines, penalties, costs and expenses (including, but not limited to, all reasonable consulting,
engineering, attorneys’ or other professional fees), that they may incur or suffer by reason
of: (i) the existence, uncovering or unveiling, or any release of a Subcontractor Hazardous Material
on, to or from the Site; (ii) any enforcement or compliance proceeding commenced by or in the name of any Governmental
Authority because of an alleged, threatened or actual violation of any Applicable Law by
Subcontractor (or its Sub-subcontractors, Suppliers, agents, or other parties acting on behalf of Subcontractor) or because of
the presence on the Site of Subcontractor Hazardous Materials; and (iii) any action
reasonably necessary to abate, remediate or prevent a violation or threatened violation
of any Applicable Law by Subcontractor (or its Sub- subcontractors, Suppliers, agents,
or other parties acting on behalf of Subcontractor) in connection with the foregoing.


 






    	22



    	 



    

 


2.11        
Force Majeure Events.


 


(a)          Subject
to the terms hereof, a Party claiming a Force Majeure Event shall be excused from the performance of its obligations under this
Agreement to the extent that such Party
cannot, using commercially reasonable efforts, perform such obligations by reason of the occurrence
of the Force Majeure Event; provided that the Party claiming a Force Majeure Event exercises
reasonable efforts to minimize and mitigate the effects of any delay caused by such Force
Majeure Event. Subcontractor shall be entitled to an adjustment to the Contract Price and/or Project
Schedule caused by a Force Majeure Event properly notified to Contractor by Subcontractor
pursuant to this Section 2.11, pursuant to a Change Order as provided in Section 2.7.
However, any Force Majeure Event that prevents performance under this Agreement for more
than three hundred sixty-five (365) days shall entitle the Subcontractor or Contractor to terminate
this Agreement by written notice to the other Party. Any adjustment of the Contract Price
and/or the Project Schedule pursuant to this Section 2.11 shall be documented by a written Change
Order to this Agreement.


 


(b)          A
Party claiming a Force Majeure Event shall notify the other Party in writing
as soon as practicable, but in any event not later seven (7) Days after the Party becomes aware
of either the occurrence or the effect of the Force Majeure Event (it being recognized herein that the occurrence or
existence of an event, condition or circumstance constituting a Force
Majeure Event may not be known until after the effects thereof are experienced).


 


2.12        
Sub-subcontractors.


 


(a)
                  Subcontractor may subcontract portions of the Work subject
only to the restrictions on subcontracting expressly provided in this Agreement.
Subcontractor assumes responsibility to Contractor for the proper performance of
the Work of Sub-subcontractors and any acts and omissions in connection with
such performance. Nothing in the Contract Documents is intended or deemed
to create any legal or contractual relationship between Contractor and any
Sub-subcontractor, including any third-party beneficiary rights; provided, that Subcontractor shall
ensure that all agreements with Sub-subcontractors shall be assignable to Contractor and the
Contractor Financing Parties in the event that this Agreement is terminated by Contractor.


 


(b)        Subcontractor
will coordinate the activities of all of Subcontractor’s Sub-subcontractors.
If Contractor performs other work on or at the Site with separate contractors under
Contractor’s control, Subcontractor agrees to reasonably cooperate and coordinate its activities
with those separate contractors so that the System can be completed in an orderly and coordinated manner without unreasonable
disruption.


 


2.13       
Security and Background Screening. Subcontractor and its Sub-subcontractors shall
comply with the security and background screening requirements and criteria set forth in the
Contract Documents and the Project Agreements.


 






    	23



    	 



    

 


ARTICLE
3

COMMISSIONING; PERFORMANCE TESTING


 


3.1            System
Commissioning Tests. After the System is functionally complete, Subcontractor shall perform the System Commissioning
Tests in accordance with Exhibit I attached
to this Agreement, and shall thereafter compile and submit to Contractor a written notice setting
forth the raw data and results of the System Commissioning Tests.


 


3.2          
System Performance Tests. Subcontractor may begin System Performance Tests at
any time after the successful completion of the System Commissioning Tests, the System components
are substantially complete and the System can be operated safely and without voiding
the manufacturer’s warranty, including prior to achieving Substantial Completion. Subcontractor shall give Contractor at
least seven (7) Days’ written notice of the projected date for the commencement
of the System Performance Tests and will afford Contractor and any Contractor Financing Parties’ representatives the opportunity
to attend and observe all such tests. In the event Subcontractor fails to provide
such notice of the System Performance Tests to Contractor, Contractor shall have
the right to require Subcontractor to re-perform the System Performance Tests at Subcontractor’s
sole cost. The System Performance Tests shall be performed in accordance with the procedures set forth in Exhibit I attached
to this Agreement. Subcontractor shall compile, determine and submit to Contractor
(i) the raw data and results of the System Performance Tests, and (ii) (a) flash test data provided by the manufacturer for modules
supplied to the Site and/or (b) in the case of Contractor-purchased modules, if such flash test data is supplied to Subcontractor.


 


ARTICLE
4

COMPLETION AND ACCEPTANCE OF THE WORK


 


4.1         
Notices of Mechanical, Substantial, and Final Completion. If Subcontractor believes
it has achieved Mechanical Completion (other than Section 4.3(l)),
Substantial Completion (other than Section 4.4(j)) or Final Completion (other than
Section 4.5(f)) with respect to any System, Subcontractor shall deliver to Contractor a
Mechanical Completion Notice, Substantial Completion Notice or Final Completion Notice, as applicable, stating that Subcontractor
believes the System has achieved Mechanical Completion, Substantial Completion or Final Completion, as applicable,
and (in cases other than a request that Contractor merely accept/approve such notice) delivering all supporting documentation
of achievement, including any required test results not previously accepted by Contractor.
Within ten (10) Business Days from receipt of
the Mechanical Completion Notice, Substantial Completion Notice or Final Completion
Notice, as applicable, Contractor and Subcontractor shall participate in a joint inspection
of the Work subject to such Notice and Contractor shall either:


 


(a)deliver
to Subcontractor the Mechanical Completion Notice, Substantial Completion Notice or Final Completion
Notice, as applicable, countersigned by a duly authorized officer of Contractor confirming
Mechanical Completion, Substantial Completion or Final Completion, as applicable, has been achieved with respect to the applicable
System; or


 






    	24



    	 



    

 


(b)notify
Subcontractor in writing that Mechanical Completion, Substantial Completion or Final Completion,
as applicable, has not been achieved with respect to the applicable System, and stating in detail the reasons why Contractor believes
so, provided that the failure to meet the condition set forth in Section 4.3(l) (with respect to Mechanical
Completion), the failure to meet the condition set forth in Section 4.4(j) (with
respect to Substantial Completion), or the failure to meet the condition set
forth in Section 4.5(f) (with respect to Final Completion) shall not be a reason
for Contractor to reject a Mechanical Completion Notice, a Substantial Completion
Notice or a Final Completion Notice, as applicable If Contractor does not respond
to a Mechanical Completion Notice or Substantial Completion Notice within such 10 Business-Day period,
without limiting any other remedies Subcontractor may have, the Mechanical Completion Deadline and Substantial Completion Deadline
shall be extended day-for-day for each day after such 10-Business Day period. The “Mechanical Completion
Date” for a System shall be the date that Contractor countersigns the
Mechanical Completion Notice for such System pursuant to Section 4.1(a). The Date” for
a System shall be the date that Contractor countersigns the Substantial Completion Notice for such System pursuant to Section
4.1(a). The Final Completion Date” for a System shall be the date that Contractor countersigns the Final
Completion Notice for such System pursuant to Section 4.1(a). If
Contractor timely notifies Subcontractor in writing that Mechanical Completion, Substantial Completion or Final Completion
has not been achieved with respect to any System, Subcontractor shall take action to achieve Mechanical Completion,
Substantial Completion or Final Completion for such System and shall deliver to
Contractor another Mechanical Completion Notice, Substantial Completion Notice or
Final Completion Notice, as applicable, and the “Mechanical Completion Date”, “Substantial Completion
Date” or “Final Completion Date”, as applicable, for such
System shall be the date Contractor delivered such replacement notice for such
System; provided that if Contractor was incorrect in determining that Mechanical Completion, Substantial Completion or
Final Completion, as applicable, had not been achieved, the “Mechanical Completion Date”, “Substantial
Completion Date” or “Final Completion Date”, as applicable, shall
be the date of the original applicable notice. This procedure shall be repeated
until Contractor confirms or is deemed to have confirmed Mechanical Completion, Substantial Completion
or Final Completion, as applicable.


 


4.2          Punch
List. In accordance with Sections 4.3 and 4.4 hereof, when any System is substantially completed,
Subcontractor shall provide Contractor with a list of items still outstanding which are
necessary to complete such System in accordance with the Specifications (the “Punch
List”). For removal of doubt, each item identified on the Punch
List shall not, individually or in the aggregate, impede the ability of Contractor
to safely operate such System in accordance with Industry Standards, manufacturer’s warranties,
or utility requirements. The Punch List shall include a schedule of values assigned to each
item on the Punch List and shall also attach or incorporate by reference an agreed list of required
documents to be provided to Contractor by Subcontractor prior to Final Completion
“Close-out Documents”.). Within five (5) Business Days after receipt of a proposed Punch List, Contractor
and Subcontractor shall jointly inspect the applicable System at a mutually agreeable time. Within
ten (10) Business Days after such inspection, Contractor shall either (a) approve the Punch List;
or (b) request that certain amendments or modifications be made to the Punch List. If Contractor
does not request any amendments or modifications to the Punch List provided by Subcontractor within such ten (10)-Business
Day Period, Contractor shall be deemed to have accepted, executed and delivered such Punch List and Contractor hereby
expressly agrees to be bound therewith (provided, that the items proposed on the
Punch List by Subcontractor do not, individually or in the aggregate, impede the
ability of Contractor to safely operate such System in
accordance with Industry Standards, manufacturer’s warranties, or utility requirements). If Contractor
timely requests amendments or modifications to the Punch List, the Parties shall negotiate in good faith and shall
promptly (but in any event within ten (10) Business Days) agree on and execute an
amended Punch List. The Parties’ agreement on the Punch List shall not
affect the Subcontractor Warranty and Subcontractor’s other obligations under this Agreement.


 






    	25



    	 



    

 


4.3           
Mechanical Completion, with respect
to each System shall occur when:


 


(a)          the
System is mechanically, electrically, and structurally constructed in accordance with this Agreement and the Scope of Work, and
all Work has been completed other than the Work required for Substantial Completion;


 


(b)         all
inspections, safety and quality checks required under Applicable Law or
this Agreement have been performed and the results are satisfactory, and accepted by Contractor, except for such checks as pertain
to or cannot be performed without grid connection;


 


(c)           other
than interconnection to the grid, the System is functionally complete, operational and capable of safe delivery
of electrical energy to the interconnection point identified in the Contract Documents;


 


(d)          the
System Commissioning Tests shall have been successfully completed in
accordance with Section 3.1 – System Commissioning Test and Exhibit I, other than such tests as require completion of the
grid connection to perform;


 


(e)         Subcontractor
and Contractor shall have agreed on the Punch List in accordance
with Section 4.2, subject to completion of tests required herein ;


 


(f)          Contractor
shall have received conditional lien waivers in the form provided for
by applicable law (conditional only on receipt of the payment of the Contract Price due hereunder) from Subcontractor and all
material first-tier subcontractors waiving any lien in connection
with the Work;


 


(g)         Subcontractor
shall have delivered to Contractor copies of all operation and
maintenance manuals with respect to the System;


 


(h)       Subcontractor
shall have delivered to Contractor copies of all manufacturer’s
warranties and any required documents required to ensure that all manufacturer’s warranties are in effect and
properly assigned as provided in Section 11.5;



 


(i)          all
applicable Contractor and Subcontractor Permits shall have been received (and are in full force and effect), and copies thereof
shall have been delivered to Contractor;


 






    	26



    	 



    

 


(j)          as
of December 31, 2015, both (i) not less than 80% of the total cost to perform and complete the Scope of Work has been incurred
and (ii) not less than 80% of the physical construction of the System has been completed as certified by the designated independent
party engaged by Contractor to assess the extent of such completion, in each case, in accordance with the Applicable NC Tax Credit
Statute and Guidance (this condition, as set forth in this clause (j), the “80% Completion Condition”); 


 


(k)          Subcontractor
shall have delivered the Mechanical Completion Notice to
Contractor pursuant to Section 4.1; and


 


(l)          Contractor
shall have approved the Mechanical Completion in accordance with Section
4.1.


 


4.4          
Substantial Completion. Substantial Completion shall occur when:


 


(a)         Mechanical
Completion shall have been achieved in accordance to Section 4.3;


 


(b)        the
grid connection for the System is mechanically, electrically and functionally complete and
interconnected with the local utility;


 


(c)         revenue
grade meters (as identified in the Scope of Work) furnished by the utility pursuant to the applicable interconnection agreement
have been installed and are operational;


 


(d)         all
inspections, safety and quality checks (other than System Commissioning Checks Tests conducted in accordance with Exhibit I attached
hereto) required under Applicable Law or
this Agreement that required grid connection to be performed have been performed and the results are satisfactory;


 


(e)         the
System Commissioning Tests that require completion of the grid connection shall have been successfully completed in
accordance with Section 3.1 and Exhibit I;


 


(f)            the
System Performance Tests have been completed in accordance with Exhibit
I attached to this Agreement and demonstrate that the System has either 


 


i.              achieved
the Minimum Performance Target but not the Performance Target and
Subcontractor has paid to Contractor the Performance Liquidated Damages as provided in Section
5.9(b) and Exhibit B or arrangements for payment thereof satisfactory to Contractor shall have been made, or


 


ii.             achieved
the Performance Target;


 


(g)            Subcontractor
shall have paid to Contractor all delay liquidated damages as provided
in Section 5.9(a) or arrangements for payment thereof satisfactory to Contractor shall have
been made;


 






    	27



    	 



    

 


(h)          Subcontractor and Contractor shall have agreed on amendments to the Punch List in accordance
with Section 4.2


 


(i)
          Approval to operate has been given by the local utility;


 


(j)
         Subcontractor shall have delivered the Substantial Completion Notice to
Contractor pursuant to Section 4.1; and


 


4.5          
Final Completion. Final Completion shall occur when:


 


(a)         Substantial
Completion shall have been achieved in accordance to Section 4.4;


 


(b)         The
Punch List items have been completed to Contractor’s reasonable satisfaction;


 


(c)         Subcontractor
has provided to Contractor the Close-out Documents, including
all final as-built drawings of the System;


 


(d)        Provided Contractor has paid any amounts subject to any outstanding liens,
no liens for any part of the Work shall be outstanding against the System, and
Contractor shall have received (i) unconditional lien waivers in the form provided for by applicable
law with respect to Work and materials for which payment was previously made hereunder from Subcontractor and all material
first-tier Subcontractors and (ii) final conditional lien
waivers in the form provided for by applicable law (conditional only on receipt of the final
payment due hereunder) from Subcontractor and all material first-tier subcontractors waiving
any lien in connection with the Work; to
the extent not already paid, all liquidated damages owed by Subcontractor under this Agreement shall have
been paid or arrangements for payments thereof satisfactory to Contractor shall have been made


 


(e)       
  Subcontractor shall have
delivered the Final Completion Notice to Contractor
pursuant to Section 4.1; and


 


(f)       
Contractor shall have approved Final Completion in accordance with Section 4.1.


 


4.6            
Punch List. The Punch List created in accordance with Section 4.2, and the Punch List items shall
be completed in a mutually agreed time period not to exceed two (2) months after Substantial
Completion of the System. If Subcontractor fails to complete the Punch List items on or
before the expiration of such two (2) month period (or such longer or shorter period as may be
agreed upon by the Parties in writing), Contractor may complete such remaining Punch List items
on its own and charge Subcontractor for the duly justified and reasonable costs, not to exceed
the costs agreed by the Parties pursuant to Section 4.2.


 






    	28



    	 



    

 


ARTICLE
5

CONTRACT PRICE; PAYMENTS


 


5.1            
Contract Price.


 


(a)                                             
Contract Price. The price for each
System contemplated to be constructed 


 


hereunder
is set forth in Exhibit A hereto (each a “System Price”).
The aggregate price for all of the Systems (the “Contract Price”) shall be as set forth in Exhibit A per installed
DC Watt), subject to adjustments as follows: 


 


(i)
As noted on Exhibit A, certain elements of each System Price are based on price per unit and quantity assumptions set
forth in Exhibit F hereto and the Contract Price for each such element shall be adjusted ratably for changes in aggregate
units pertaining to the Systems actually constructed pursuant to this Agreement;


 


(ii)
Fixed contract price of [Insert Revised Total From Exhibit A].00 Dollars, subject to adjustments as set forth under “Allowance”
in Exhibit A, based on the scope of work in Exhibit F. 


 


(iii)
The fixed Contract Price may be subject to further adjustment only pursuant to one or more Change Orders in accordance
with Section 2.7; and 


 


(iv)
The Contract Price is thus guaranteed by Subcontractor to be a lump sum price, subject only to additions and deductions as
mentioned in the above. Other than
the foregoing adjustments, any other costs which would cause the Contract Price to be exceeded shall be paid by Subcontractor
without reimbursement by Contractor.


 


(b)         Contractor
Taxes. The Contract Price excludes any and all Taxes and Property
Taxes, other than Subcontractor Taxes, which shall be the sole responsibility of Contractor,
and Contractor shall fully indemnify Subcontractor against any and all such Taxes and
Property Taxes. Customer shall timely pay all Taxes and Property Taxes due for which it is responsible
under Applicable Law, including any Taxes included on invoices provided by Contractor.
Subcontractor and Contractor shall cooperate with each other to minimize the tax liability
of both Parties to the extent legally permissible.


 


(c)          Subcontractor
Taxes. Contractor shall be solely responsible for any and all
Subcontractor Taxes, and Subcontractor shall fully indemnify Contractor against any and all such
Subcontractor Taxes. Subcontractor shall timely pay all Subcontractor Taxes assessed against
it under Applicable Law in connection with Work under this Agreement and shall make
any and all payroll deductions required by Applicable Law.


 


5.2           Payments
of the Contract Price. Subject to the other provisions of this Agreement, payments to Subcontractor for
constructing each System shall be paid for progress achieved, pursuant to the Progress Billing method defined above and set
forth in Section 5.3 hereof, based on the System Prices set forth in Exhibit A. Notwithstanding any other provision of the
contract, however, Contractor shall pay to Subcontractor no later than December 15, 2015 30% of the Contract price, which
amounts shall be applied to invoices as rendered.


 






    	29



    	 



    

 


5.3          Invoices.
On each Billing Date, Subcontractor shall submit an invoice for each System in accordance with Section 5.2
hereof, together with reasonable
documentation in support of such invoice
demonstrating achievement of the relevant monthly progress criteria set forth on Exhibit A.,
and signed conditional lien waivers received from Sub-subcontractors and a signed conditional lien
waiver from Subcontractor for the Work included in the invoice and signed unconditional lien
waivers for the Work included in the invoice submitted for the immediately preceding Monthly
Progress Payment and for which payment was received by Subcontractor. Each lien waiver shall be in the form prescribed by
applicable law in the State in which the Site is located or,
if no such form is prescribed, in a form reasonably satisfactory to Contractor. The invoice for
Final Completion shall include a statement as to whether the Contract Price adjustment described
in Section 5.10 applies and, if so, a calculation of the amount of such adjustment (including
the calculation, if any, required for Change Orders pursuant to the last paragraph of Section
2.7(c)) and statement of Subcontractor’s actual costs incurred through Final Completion
compared to the cost estimate through Substantial Completion used to establish the
Contract Price. Contractor shall pay each invoice within thirty (30) Days from the receipt by Contractor
of such invoice, together with reasonable supporting documentation and the required lien
waivers, subject to the dispute provisions of Section 5.4.


 


5.4            Disputed
Invoices. If Contractor reasonably and in good faith disputes any invoice or any portion thereof,
Contractor shall give Subcontractor Notice of such dispute within fifteen (15) Business
Days after receipt of such invoice, reasonable documentation, and the required
lien waivers and shall nevertheless timely pay the undisputed portion of such invoice
in accordance with Section 5.3. If Contractor fails to dispute an invoice within such fifteen
(15) Business Day period, Contractor shall be deemed to have accepted such invoice in full.
Upon receipt by Subcontractor of a timely dispute Notice, the Parties shall meet and attempt
to resolve such dispute amicably. Upon resolution of any disputed amount, the agreed- upon
amount shall be paid within fifteen (15) Business Days after resolution of the dispute. Contractor shall not
be deemed to be in default of this Agreement by reason of withholding payment with respect to
any portion of an invoice disputed reasonably and in good faith; provided, that if such dispute is
resolved in Subcontractor’s favor, Contractor shall pay interest (as provided in the next sentence) on
such unpaid amounts dating back to the original due date set forth in the applicable invoice. Any payment not
received on or before the due date for such payment, shall bear interest at the rate of
two percent (2%) above the rate per annum quoted in the Wall Street Journal as the prime
rate for corporate loans (or the arithmetic mean if there is more than one such rate), or the
highest rate allowable by law, whichever is lower, commencing on the first Day after such payment
is due and continuing until paid.


 


5.5             Payment
to Sub-subcontractors and Suppliers. Provided and to the extent Contractor has paid amounts due Subcontractor,
Subcontractor shall be responsible to keep the Site clear and free from all liens placed on the Site by any Sub-subcontractor
or Supplier or Subcontractor with respect to
Work paid for by Contractor, and to defend, discharge or bond any
such liens as soon as reasonably practicable.


 






    	30



    	 



    

 


5.6             Title. Title
to all or any portion of the Work (including materials, equipment and other items that are to be incorporated in or
become part of the System) shall pass to Contractor upon
the earlier of (i) payment for such Work and (ii) incorporation of such Work into the System.
Transfer of title to Work shall be without prejudice to Contractor’s right to reject defective Work,
or any other right in this Agreement.


 


5.7             Risk
of Loss. From the Effective Date and until the Substantial Completion Date of
the System, notwithstanding Section 5.6, Subcontractor assumes risk of loss and full responsibility
for the cost of replacing or repairing any damage to the System and all materials, equipment,
supplies and maintenance equipment (including temporary materials, equipment and supplies)
that are purchased by Subcontractor for permanent installation in or for use during construction
of the System or that are purchased by Contractor and approved by Subcontractor for
permanent installation in or for use during construction of the System. Contractor shall bear the risk of loss and
full responsibility in respect of the System from and after the Substantial Completion
Date of the System. Notwithstanding the foregoing:


 


(a)         Subcontractor
shall not be obligated to restore or rebuild any such loss or damage that would have been
covered by insurance that Subcontractor is required to maintain pursuant to
Section 8.1 unless Contractor has obtained and maintained such insurance and Subcontractor
has received reasonable assurances from Contractor that Contractor will prosecute such claim in a commercially reasonable
manner and Subcontractor will receive the insurance proceeds, if any, paid under such Contractor-maintained insurance
policy;


 


(b)         Contractor
shall bear the risk of loss and full responsibility for the cost of replacing or repairing any damage to the System and all materials,
equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased
by Subcontractor or Contractor for permanent installation in or for use during construction
of the System to the extent caused by the negligent, grossly negligent or willful acts of Contractor or its agents, employees
or representatives; and


 


(c)         The
transfer of risk of loss to Contractor from and after the Substantial Completion
Date of the System shall not affect the Subcontractor Warranty and Subcontractor’s other
obligations under this Agreement.


 


5.8             Contractor
Credit Support. Notwithstanding anything to the contrary herein, Contractor shall provide on the Effective Date and
shall maintain until final payment upon Final Completion
such credit support with respect to its obligations under this Agreement as may be required under Applicable Law in the State
in which the Site is located.


 


5.9             Liquidated
Damages.


 


(a)        Delay
Liquidated Damages. Subcontractor agrees that, if either (i) Mechanical Completion
for any of the Systems is not achieved by the Mechanical Completion Deadline for such System, or if the 80% Completion Condition
is not achieved for any of the Systems by December 31, 2015then Subcontractor shall pay
Contractor the liquidated damages for such delay designated in the Liquidated Damages Schedule
in Exhibit B for each day that, with respect to each delayed System, Subcontractor fails to achieve Mechanical Completion
after the Mechanical Completion Deadline,
subject to the cap set forth on the Liquidated Damages Schedule.
If any delay liquidated damages are payable under this Section 5.9(a), then the aggregate
amount of such liquidated damages shall become payable upon the date that any amount of the Contract Price becomes payable to
Subcontractor upon achievement of Substantial Completion and shall be set-off against
such payment due to Subcontractor upon achievement of Substantial Completion. Notwithstanding the above, if delay is caused in
achieving Substantial Completion within the stipulated Substantial Completion Deadline for reasons attributed solely to Subcontractor’s
acts or omissions, Subcontractor shall be liable to pay Contractor liquidated damages pursuant to Exhibit B in a similar manner
as delay in achieving Mechanical Completion within the Mechanical Completion Deadline. 


 






    	31



    	 



    

 


(b)        System
Performance Liquidated Damages. Subcontractor shall cause each System
to meet the Acceptable Performance Target (97% or above). If System
Performance Tests results in a determination that System Performance of any System, meets the Minimum Performance Target of 94%,
but not the Acceptable Performance Target,
then Subcontractor may, during a 90-day period after the initial System
Performance Test, take any action it deems appropriate to modify the Systems and continue to perform the System Performance Tests
until such System meets the Acceptable
Performance Target of 97% or above. If the System has achieved the Minimum Performance Target of 94%, but
has not achieved the Acceptable Performance Target of 97%, Subcontractor may elect to pay to Contractor the liquidated
damages for the shortfall in performance below the Performance Target designated in the
Liquidated Damages Schedule in Exhibit B and, so long as the other conditions to Substantial Completion
are satisfied, deliver the Substantial Completion Notice as provided in Section 4.3. The
amount of such system performance liquidated damages shall become payable upon achievement
of Substantial Completion and be set-off against the payment due to Subcontractor upon
achievement of Substantial Completion.


 


(c)          Liquidated
Damages Not a Penalty. The Parties agree that Contractor’s actual
damages in the event of any such delays or system performance failure would be extremely difficult
or impracticable to determine. After negotiation, the Parties have agreed that the damages set
forth in the Liquidated Damages Schedule are in the nature of liquidated damages and are
a reasonable and appropriate measure of the damages that Contractor would incur as a result
of such delays or failure, and do not represent a penalty. Liquidated Damages are Contractor’s sole
and complete remedy for Delay Damages and Performance Liquidated Damages.


 


(d)          Nothing
contained in the above shall limit Contractor’s right to indemnification (as set forth in Section 7.1), or reduce the insurance
coverage (under Section 8.2) in any manner. 


 






    	32



    	 



    

 


ARTICLE
6

TERM


 


6.1             Generally. This
Agreement shall commence on the Effective Date and shall continue until the full performance of all
obligations hereunder, unless this Agreement is earlier terminated as
provided in this Article 6. Contractor shall not be entitled to terminate this Agreement
for convenience, but shall be entitled to terminate this Agreement as provided in Section
2.11 or if any of the Project Agreements are terminated (other than as a result of the Contractor’s acts
or omissions) and one or more of the System can no longer be implemented at the respective Sites. If Contractor terminates
this Agreement as provided in Section 2.11 or, if any Project Agreement is
terminated (other than as a result of the Subcontractor’s acts or
omissions) and one or more Systems is no longer permitted to be sited at the
applicable Site(s) (each a “Site Termination”), Subcontractor shall be entitled (with
respect to any System affected by a Site Termination) to payment within ten (10)
Business Days after such Site Termination of (i) all amounts due from Contractor for Work provided
and materials purchased in connection with such System through the date of such Site Termination (including, for avoidance
of doubt, with respect to any Milestone that has not been achieved, for the portion of Work with respect
to that Milestone that has been completed), plus (ii) interest on the amount calculated for clause
(i) at a rate of the Prime Rate (on the date such payment is due as published in the Wall Street
Journal) plus 5%, plus (iii) all documented costs of winding down the System, removing materials and supplies from
the Site and terminating Sub-subcontractors and any material purchase orders, plus (iv) a financing fee equal to 1% of the
unpaid portion of the Contract Price. Termination or expiration of this Agreement shall
not relieve the Parties from their respective obligations that survive in
accordance with this Agreement, including, after Substantial Completion,
obligations under the Subcontractor Warranty and obligations with respect to indemnification.


 


6.2             Termination
for Cause by Contractor. Contractor shall be entitled to terminate this Agreement
by written notice to Subcontractor stating that it is a notice of termination pursuant to
this Section 6.2, upon the occurrence of any of the following circumstances:


 


(a)          Provided
Contractor has paid all undisputed amounts due hereunder to Subcontractor,
Subcontractor fails to pay any amount owing under this Agreement that remains
outstanding for a period of twenty (20) Days or more which is not the subject of a good faith
dispute; or


 


(b)        an
Insolvency Event occurs with respect to Subcontractor; or


 


(c)          Subcontractor
materially breaches this Agreement and does not take action to
cure such breach within fifteen (15) Business Days after Notice thereof; provided, that if the
relevant material breach cannot reasonably be cured within the time period set forth above, such
fifteen (15) Business Day period shall be extended as may reasonably be required so long as Subcontractor promptly commences to
cure such breach and continues to diligently pursue such
cure to completion; provided further, that if any such breach also caused a breach or default by Contractor
under the Project Agreements, then no cure period hereunder shall be permitted beyond the applicable cure period provided for
in the applicable Project Agreements; or


 






    	33



    	 



    

 


(d)         a
representation made by Subcontractor in or pursuant to this Agreement is
proven to have been false in any material respect as of the date on which it was made and, if such misrepresentation
is of a nature that Subcontractor can mitigate in all material respects any adverse consequences
of such misrepresentation to Contractor, the System or the Site, such misrepresentation
has not so mitigated within sixty (60) Days after written notice from Contractor;
or


 


(e)          Subcontractor
fails to maintain the insurance required by Section 8.2 and such failure is not remedied within five (5) Business Days after Notice
thereof.


 


6.3             Contractor’s
Rights and Remedies.


 


(a)           Upon
termination of this Agreement for cause by Contractor under
Section 6.2:


 


		(i)	Contractor
                                         may instruct Subcontractor to immediately discontinue all
                                         or any part of the Work, and Subcontractor shall thereupon discontinue the Work or such
                                         parts thereof;
	 	 	 
		(ii)	Contractor
                                         shall pay Subcontractor the outstanding portion of the Contract
                                         Price due for all Work performed and equipment supplied by Subcontractor
                                         up to and including the date of termination;
	 	 	 
		(iii)	Subcontractor
                                         shall deliver to Contractor (i) all drawings, designs, plans
                                         and manuals relating to the System, and (ii) all other materials and equipment
                                         paid for by Contractor as part of Contract Price;
	 	 	 
		(iv)	Contractor
                                         may continue and complete the Work or any part thereof,
                                         by contract or otherwise and, upon Contractor’s written request Subcontractor
                                         shall deliver and assign to Contractor, and Contractor may at its discretion
                                         assume, any and all subcontracts, supply agreements and purchase orders entered into
                                         by Subcontractor in order to undertake the Work; provided that
                                         such subcontracts, supply agreements and purchase orders are (i) assignable by
                                         their terms; and (ii) necessary to complete the Work;
	 	 	 
		(v)	Subcontractor
                                         shall be liable to Contractor for the difference between
                                         the outstanding balance of the Contract Price and Contractor’s actual, reasonable
                                         and documented cost to complete the System in accordance with the Contract
                                         Documents; and Contractor may exclude Subcontractor
                                         from the Site but must provide a reasonable
                                         opportunity to remove Subcontractor’s or its Sub- subcontractors’
                                         equipment or other property from the Site, within a period of ten (10) Days from notice
                                         of such termination



  


(b)         If
Subcontractor is in default of this Agreement, Contractor may exercise any
or all other remedies available at law or at equity, all of which shall be cumulative.


 






    	34



    	 



    

 


6.4                                    Termination
for Cause by Subcontractor. Subcontractor shall be entitled to terminate this Agreement by written notice
to Contractor stating that it is a notice of termination pursuant
to this Section 6.4, upon the occurrence of any of the following circumstances:


 


(a)            Contractor
fails to pay any amount of the Contract Price owing under this Agreement
that remains outstanding for a period of twenty (20) Days or more which is not the subject
of a good faith dispute; or


 


(b)          an
Insolvency Event occurs with respect to Contractor or any person(s) providing credit support referred to in Section 5.8; or


 


(c)           Contractor
materially breaches this Agreement and does not take action to cure
such breach within fifteen (15) Business Days after Notice thereof; provided that if the relevant
material breach cannot reasonably be cured within the time period set forth above, such fifteen
(15) Business Day period shall be extended as may reasonably be required so long as Subcontractor promptly commences to cure such
breach and continues to diligently pursue such cure
to completion; or


 


(d)          a
representation made by Contractor in or pursuant to this Agreement is proven
to have been false in any material respect as of the date on which it was made and, if such misrepresentation
is of a nature that Contractor can mitigate in all material respects any adverse consequences
of such misrepresentation to Subcontractor, such misrepresentation has not so mitigated
within sixty (60) Days after written notice from Subcontractor.


 


6.5          Subcontractor’s
Rights and Remedies.


 


(a)           If
(i) Contractor fails to pay any amount payable to Subcontractor which is not subject to a bona fide dispute after it becomes due
and payable to Subcontractor under this Agreement,
or (ii) an Insolvency Event occurs with respect to Contractor or any person(s) providing
credit support referred to in Section 5.8, then, Subcontractor may, upon ten (10) Days’ written
Notice to Contractor, suspend all Work until any such payment is made or such other default
is cured.


 


(b)         Upon
termination of this Agreement by Subcontractor under Section 6.4,
Subcontractor may recover from Contractor (i) all amounts due from Contractor for Work, including
services provided and materials purchased, through the date of termination (including, for avoidance of doubt, with respect to
any Milestone that has not been achieved, for the portion of
Work with respect to that Milestone that has been completed), (ii) all reasonable, documented costs
of winding down the System, removing materials and supplies from the Site and terminating
Sub-subcontractors and any material purchase orders, and unwinding any bonding arrangements,
and (iii) a 10% markup to the foregoing to cover administration, overhead and profit.
The remedies provided in this Section shall be Subcontractor’s sole and exclusive remedies against
Contractor with respect to Subcontractor’s termination of this Agreement for cause.


 






    	35



    	 



    

 


ARTICLE
7

INDEMNITY


 


7.1           
Indemnification by Subcontractor.


 


(a)           Subcontractor
shall defend, indemnify and hold harmless Contractor, its affiliates,
Contractor Financing Parties (if any), and their respective officers, directors, employees and
agents (“Contractor Indemnified Parties”) from and against any claims, demands, damages, losses,
fees, expenses, liabilities and penalties (including reasonable attorneys’ and expert witnesses’
fees) of any third parties, including employees of Subcontractor Parties, arising out of death,
personal injury, or property damage to the extent caused by negligence or willful misconduct
of Subcontractor or its Sub-subcontractors or Suppliers or their respective directors, officers,
employees, agents or representatives (“Subcontractor Parties”) or by Subcontractor’s breach
of its obligations under this Agreement; provided, however, in no event will Subcontractor be
responsible for any such third-party claims, demands, damages, losses, fees, expenses, liabilities
and penalties (including reasonable attorneys’ and expert witnesses’ fees) to the extent caused
by negligent or other wrongful acts or omissions of such Contractor Indemnified Parties; provided,
further, that to the extent Contractor recovers such claims, demands, damages, losses, fees,
expenses, liabilities and penalties (including reasonable attorneys’ and expert witnesses’ fees)
under any insurance policy, Contractor shall reimburse any payment made by Subcontractor
under this indemnity up to the amount recovered under any insurance policy.


 


(b)         To
the extent Subcontractor has received payment for the Work, Subcontractor will indemnify,
defend and hold harmless Contractor Indemnified Parties from any claims or mechanic’s
liens brought or filed in connection with the Work. After receiving notice from Contractor
that such a claim or mechanic’s lien has been filed, Subcontractor shall either discharge such claim or lien or provide
a bond or other security reasonably satisfactory to the Contractor Indemnified Parties securing
the amount owed that gave rise to such lien. If the Subcontractor has not discharged
such claims or mechanic’s liens within 30 Days after receiving notice from Contractor, then Contractor may pay such claim
or lien and seek reimbursement from Subcontractor for the amount paid to discharge
claim or lien, or set-off the amount paid against amounts owed to Contractor hereunder.


 


7.2           Indemnification
by Contractor. Contractor shall defend, indemnify and hold harmless
Subcontractor, its officers, directors, employees and agents (“Subcontractor Indemnified
Parties”) from and against any third party claims, demands, damages, losses, fees, expenses,
liabilities and penalties (including reasonable attorneys’ and expert witnesses’ fees), arising out of or
relating to death, personal injury, or property damage claims to the extent caused by
negligent or other wrongful acts or omissions of Contractor or its contractors or suppliers
(other than the Subcontractor or any other Subcontractor Parties) or by Contractor’s breach
of its obligations under this Agreement; provided, however, in no event will Contractor be responsible
for any such third-party claims, demands, damages, losses, fees, expenses, liabilities and
penalties (including reasonable attorneys’ and expert witnesses’ fees) to the extent caused by
negligent or other wrongful acts or omissions of such Subcontractor Indemnified Parties; provided,
further, that to the extent Subcontractor recovers such claims, demands, damages, losses, fees,
expenses, liabilities and penalties (including reasonable attorneys’ and expert witnesses’ fees)
under any insurance policy, Subcontractor shall reimburse any payment made by Contractor
under this indemnity up to the amount recovered under any insurance policy.


 






    	36



    	 



    

 


7.3           LIMITATION
OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF
OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS,
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS
INTERRUPTION, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN ADDITION, WHETHER ANY ACTION OR CLAIM IS
BASED ON WARRANTY, CONTRACT, AND TORT OR OTHERWISE, UNDER NO CIRCUMSTANCES
SHALL SUBCONTRACTOR’S TOTAL LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT EXCEED THE CONTRACT PRICE. NOTWITHSTANDING
THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO
(I) SUBCONTRACTOR’S LIABILITY ARISING FROM THE LAST SENTENCE OF SECTION 8.2, (II) ANY OBLIGATION OF A PARTY TO INDEMNIFY
THE OTHER PARTY (OR THE CONTRACTOR INDEMNIFIED PARTIES OR THE SUBCONTRACTOR INDEMNIFIED
PARTIES, AS APPLICABLE) PURSUANT TO THE INDEMNIFICATION PROVISIONS OF
THIS AGREEMENT OR (III) ANY CLAIMS BASED ON ALLEGATIONS OF FRAUD OR WILLFUL MISCONDUCT
TO THE EXTENT THE SAME IS DETERMINED PURSUANT TO A FINAL DECISION OF A COURT OF COMPETENT
JURISDICTION. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY
TO REDUCE THE PROCEEDS OF INSURANCE OTHERWISE PAYABLE.


 


ARTICLE
8

INSURANCE


 


8.1          
Contractor’s Insurance. Contractor shall procure and maintain general liability
Insurance. Limits of liability will be maintained at $1,000,000 per occurrence/$2,000,000 annual aggregate.
Coverage will include Products Completed Operations, Personal/Advertising Injury, and
medical expense of $10,000. Contractor shall provide Subcontractor a certificate of insurance evidencing
the insurance required in this Section upon request.


 


8.2           Subcontractor’s
Insurance. Subcontractor shall maintain the types and levels of Insurance
set forth in this Section 8.2 through the Substantial Completion Date or any greater time period if and to the extent
required by Applicable Law. Subcontractor shall provide Contractor a certificate
of insurance evidencing the insurance required in this Section 8.2 upon request. All insurance
policies shall be underwritten by companies rated in the latest A.M. Best’s Insurance Rating Guide with a rating of at
least A- and financial category of at least IX.


 






    	37



    	 



    

 


(a)            Commercial
General Liability: Limits of liability will be maintained at $1,000,000 per occurrence/$2,000,000 annual aggregate
(on a per project basis). Coverage will include
Premises/Operations, Products Completed Operations, Contractual Liability, Property Damage,
and Personal Injury. Coverage provided is primary and is not in excess to or contributing with
any insurance maintained by Customer; and contain a severability of interest clause or cross-liability
clause. For three (3) years following the final completion date for the project, Contractor
shall maintain products/completed operation insurance applicable solely to its operations under the Contract. The policy
deductibles shall not be more than $25,000 per occurrence
and any required payment of the deductible shall be the responsibility of the Contractor.


 


(b)         Excess/Umbrella
Liability (follow form): Limits of liability in excess of those required in subsections (a), (d) (employer’s liability only)
and (e) will be maintained at least $5,000,000
per occurrence /$5,000,000 annual aggregate and written on an occurrence basis.


 


(c)          Installation
or Builders’ Risk Insurance: Will cover the System and all materials after delivery
to the Site for their full replacement cost value on an all risk or special cause
of loss form from the Commencement Date through the Substantial Completion Date or any
greater time period if and to the extent required by Applicable Law. Insurance shall be in a form
and include deductible levels typically found in the insurance market for similar solar projects.


 


(d)         Workers’
Compensation: Statutory as described by law and employers’ liability
at limits of not less than $1,000,000.


 


(e)         Automobile
Liability: Limits will be maintained at $1,000,000 combined single
limit per occurrence for bodily injury and property damage. Insurance shall cover owned, non-owned,
and hired autos.


 


(f)         Professional Liability: Limits will be maintained at $1,000,000 per occurrence. Contractor shall maintain this policy for
a minimum of two (2) years after Substantial Completion or shall arrange for a two-year extended coverage provision if the
policy is not renewed. If Subcontractor fails to secure and maintain the required insurance, Contractor shall have the right
(without any obligation to do so, however) to secure the same in the name and for the account of Subcontractor, in which event
Subcontractor shall pay the reasonable cost thereof (or Contractor may deduct the same from amounts otherwise due Contractor
hereunder) and Subcontractor shall furnish upon demand all information that may be required in connection therewith. Insurance
for 8.2.(a), and 8.2.(e) will name Contractor, its parent, associated and affiliate companies and their respective directors,
officers, agents, servants, employees and Contractor Financing Parties, [________] as additional insureds, by way of the blanket
vendors additional insured endorsement. 8.2 (c) will name Contractor, its parent, associated and affiliate companies and their
respective directors, officers, agents, servants, employees and Contractor Financing Parties, [_________]as loss payee. Notice
regarding cancellation, termination or material change in coverage or condition will be provided in accordance with the policy
terms. Contractor and Contractor’s Financing Parties will be provided with 30 days written notice if any policy listed
on the certificate is cancelled prior to the expiration date. Contractor and Subcontractor shall to waive all rights of subrogation
against both each Parties and against Contractor Financing Parties, any right of setoff and counterclaim, and any right to
deduction due to outstanding premiums. Subcontractor shall cause Sub-subcontractors to carry commercial general liability
insurance as described in subsection (a), workers compensation insurance as described in subsection (d), and automobile liability
described in subsection (e). If Subcontractor fails to secure and maintain the required insurance and during such time period,
a casualty or other otherwise insurable event occurs, Subcontractor shall bear full responsibility for costs associated with
repairing or replacing the System as a result of such event.


 






    	38



    	 



    

 


Certificates
of Insurance to be issued to the following parties;


 





	Subcontractor:	GED
	 	547 W. Charles St. Suite 100
	 	Matthews, North Carolina 28105
	 	Attn: Manager
	 	 
	Contractor:	Panasonic Corporation of North America
	 	acting through its division
	 	Panasonic Enterprise Solutions
	 	Company Two Riverfront Plaza, 12th
	 	Floor
	 	Newark, NJ 07102
	 	Attn: General Counsel
	 	 
	Customer:	Coronal HS, LLC
	 	c/o Coronal Group
	 	LLC
	 	330 N. Brand
	 	Blvd. Suite 1170
	 	Glendale, CA 91203
	 	Attn: General
	 	Counsel




 






    	39



    	 



    

 


ARTICLE
9


 


REPRESENTATIONS
AND


WARRANTIES


 


Except
as otherwise indicated below, each Party hereby represents and warrants to the other
Party as follows:


 


9.1           Organization
and Qualification. It is duly formed, validly existing and in good standing
under the laws of the jurisdiction of its organization and has the lawful power to engage
in the business it presently conducts and contemplates conducting.


 


9.2          Power
and Authority. It has the power to make and carry out this Agreement and to perform its obligations
hereunder and under the Scope of Work and all such actions have been duly
authorized by all necessary proceedings on its part.


 


9.3           No
Conflict. The execution, delivery and performance of this Agreement will not conflict with, result in the breach
of, constitute a default under or accelerate performance required
by any of the terms of its certificate of incorporation, by-laws, certificate of organization
or operating agreement, as applicable, or any Applicable Law or any covenant, agreement,
understanding, decree or order to which it is a party or by which it or any of its properties
or assets is bound or affected.


 


9.4           Validity
and Binding Effect. This Agreement has been duly and validly executed and
delivered by it and constitutes its legal, valid and binding obligation, enforceable in accordance with
its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of creditors generally
or by general principles of equity.


 


9.5           Licenses. Subcontractor
and Contractor represent and warrant that each is duly licensed as a contractor in the State in which the Site is
located, to the extent required under Applicable
Law to be so licensed in connection with the Work or any part thereof.


 


9.6          Subcontractor
Patents. Subcontractor represents and warrants to Contractor that Subcontractor owns or has the right to
use, or will be able to secure from its Sub-subcontractors or
Suppliers the right to use, all intellectual property rights necessary to perform the Work without conflict
with the rights of others and to enable Contractor to operate, maintain and repair the System without infringement thereof;
and Subcontractor shall defend, indemnify and hold Contractor
harmless from any and all claims relating to Contractor’s use of such intellectual property,
so long as such use is consistent with the license provided in Section 13.14.


 


9.7          Site
Control. Contractor represents and warrants to Subcontractor that, to the best of
Contractor’s knowledge, other than as set forth in the Contract Documents and the Project Agreements,
there are no restrictions on use of the Site, or any other property adjacent to or near the
Site that would interfere with the performance of Subcontractor’s obligations under this Agreement.


 






    	40



    	 



    

 


ARTICLE
10


 


CONTRACTOR’S

RESPONSIBILITIES


 


10.1        Access
to Site. To the maximum extent permitted under and subject to the requirements
of the Project Agreements, on the Commencement Date and for so long as any Work (including
any Work related to the Subcontractor Warranty) is to be provided by Subcontractor or
its Sub-subcontractors hereunder, Contractor shall enable Subcontractor or any of its Sub- subcontractors or agents to gain
commercially reasonable access to the Site for the purpose of performing
the Work hereunder. Contractor shall keep the Site free and clear from any Hazardous Materials
introduced to the Site by Contractor. In addition to the foregoing, to the maximum extent
permitted under and subject to the requirements of the Project Agreements, Contractor shall allow Subcontractor to
have access to the Site to: (a) inspect the Site to verify conditions and
to construct and install the System on the Site; (b) to access and maintain a data acquisition system (“DAS”) on
the System and collect data from such DAS, independent of any DAS owned by
Customer; and (c) to perform (or cause to be performed) all tasks necessary or appropriate, as
reasonably determined by Subcontractor, to carry out the activities and enjoy the rights set forth in this Agreement. To the
maximum extent permitted under and subject to the requirements
of the Project Agreements, Contractor shall ensure that Subcontractor has access to and
use of lighting, power, and water while performing Work hereunder at no cost to Subcontractor.


 


10.2         
Information Regarding the Site. Contractor shall provide to Subcontractor such documents,
information and materials as are in Contractor’s possession or reasonably available to Contractor
with respect to the Site, including, to the extent reasonably available to Contractor, surveys describing the property, boundaries,
topography and reference points for use during construction,
including existing service and utility lines; if all or a portion of the System is to be ground-mounted,
the Geotech Report, any zoning or other requirements and encumbrances affecting
land use, or necessary to permit the proper design and construction of the System and enable
Subcontractor to perform the Work; a legal description of the Site and as-built and record drawings
of any existing structures at the Site; and environmental studies, reports and impact statements
describing the environmental conditions, including Hazardous Materials, including the
Environmental Reports. Subcontractor will be entitled to rely on the accuracy of the information provided
by Contractor pursuant to this Section and listed on Schedule 10.2.


 


10.3          
Permits. Contractor shall obtain and maintain any and all Contractor Permits, at its sole
cost and expense.


 


10.4        
Compliance with Laws and Agreements. Contractor shall comply with any obligation
required at law or in equity or under any Permits, financing documents, or other agreements
or understandings to which Contractor or any Contractor Person is a party or under which any of them is bound, to the extent failure
to comply with any such obligation would have an
adverse effect on the ability of the Contractor or Subcontractor to perform its respective obligations
hereunder.


 


10.5
         Cooperation. The Parties shall fully and timely cooperate with each other in the performance
of their respective obligations under this Agreement and the Contract Documents, including,
(a) timely delivery and review and, where applicable, approval of drawings, specifications,
Change Order Requests and other communications requirements and (b) timely provision
of all information and consents necessary for Subcontractor to apply for the Subcontractor
Permits and fulfill its obligations hereunder and for Contractor to apply for the Contractor
Permits and fulfill its obligations hereunder.


 


10.6        
Data Transmission. Contractor shall cause to be installed within the System or within
twenty (20) feet of the System a broadband internet connection for data transmission and
shall maintain such connection throughout the period when any Contractor Warranty remains in
effect.


 






    	41



    	 



    

 


ARTICLE
11


 


SUBCONTRACTOR
WARRANTIES


 


11.1         
Warranty of Title. Subcontractor warrants good title, free and clear of all liens and other
encumbrances to all equipment and other items furnished by it or any of its Sub- subcontractors
or Suppliers that become part of the System; provided that such warranty is (i) conditioned
upon Contractor making payments in accordance with the terms of this Agreement, and
(ii) excludes liens or other encumbrances created by or through Contractor including those imposed
or claimed as a result of acts or omissions of Contractor.


 


11.2        
Defect Warranty. Commencing on the Substantial Completion Date and for a period thereafter
that is the greater of (x) two (2) years and (y) such longer period as required by Applicable
Law, Subcontractor warrants that the System will (i) be free from defects in materials, construction,
fabrication and workmanship; (ii) be new and unused at the time of installation; and (iii) be of good quality and in good condition.
For the purposes hereof, “defect” means failure of the System or the applicable
component thereof to conform to Specifications therefor set forth in the Contract
Documents.


 


11.3        
Design Warranty. Commencing on the Substantial Completion Date and for a period thereafter
that is the greater of (x) two (2) years and (y) such longer period as required by Applicable
Law, Subcontractor warrants that the design services included as part of the Work furnished by Subcontractor or any Sub-subcontractors
hereunder shall conform to the design specifications set forth in the Specifications,
subject to amendment/modification pursuant to Change Orders subsequent to the Final Designs.


 


11.4       
Exclusions. The Subcontractor Warranty shall be subject to the following exclusions,
and Subcontractor shall not be responsible for:


 


(a)          any
defect or damage or malfunction to the extent caused by (1) the failure to properly operate or maintain the System in accordance
with manuals or printed instructions provided
with the System or in accordance with Industry Standards, other than any such failure by
Subcontractor or any of its affiliates, or any Sub-subcontractors that are performing operating or
maintenance services to the System, (2) any repair or replacement using a part or service not
listed in the operation and maintenance manual or Contract Documents, or not provided or
authorized in writing by Contractor, (3) improper use, vandalism, or theft, or (4) Force Majeure Events;


 


(b)        normal
wear and tear;


 






    	42



    	 



    

 


(c)        damage caused by insects, rodents or other animals; or


 


(d)          any
modifications or enhancement to the System, or alterations, repairs or replacements
performed by the Contractor or any Contractor’s contractor (other than the Subcontractor,
any Subcontractor affiliate, or any of Subcontractor’s Sub-subcontractors) or Customer
after the Mechanical Completion made without prior written approval of Subcontractor and
not executed in accordance with the manuals or printed instructions provided with the System,
Applicable Law or Industry Practices; provided, however, that the foregoing exclusions shall not apply, to the extent caused
by any act or omission of Subcontractor, or any failure by Subcontractor to perform,
as operator under the O&M Agreement. For avoidance of doubt, the Subcontractor
Warranty does not include and Subcontractor is not responsible for defects in those photovoltaic
modules or inverters or other components (if any) that have not been supplied by Subcontractor (or, if so specified in the Scope
of Work, other components of the System
with respect to which the original manufacturer’s warranties are assigned to Customer
as provided in Section 11.5 below), and shall exclude any warranty claims to the extent
caused by defects in design, materials, construction and workmanship of the photovoltaic modules,
inverters and racking of the System (or, if so specified in the Scope of Work, such other components of the System).
The warranties provided herein are not a warranty or guarantee of any specific level of output
of energy from the System.


 


11.5      
Pass-Through Manufacturers’ Warranties. Subcontractor shall assign to Customer,
upon Substantial Completion of the System, all applicable pass-through warranties from Subcontractor’s manufacturers and
suppliers, including, if applicable, the manufacturer of the inverters and,
if so specified in the Scope of Work, other components of the System with respect to which the original manufacturer’s warranties
are assigned to Contractor by Subcontractor. Such manufacturers shall be stated
in Contract Documents. Subcontractor will provide Contractor with copies of all such
pass-through warranties. In the event that any inverters are provided by Contractor or any
entity affiliated with Contractor for use in the System, Subcontractor shall have no obligation
to assign the applicable warranty for such inverters.


 


11.6       
Warranty Claim Process; Repair or Replace. Contractor shall provide to Subcontractor
written notice of a claim under the Subcontractor Warranty reasonably promptly after discovery of the conditions or circumstances
upon which such claim is made, and shall provide to Subcontractor an opportunity to investigate such a claim. Subcontractor shall,
at Subcontractor’s own cost and expense,
as promptly as practicable and on a reasonably expedited basis
while minimizing any impact of the failure on the availability and functionality of the System, repair
or replace or re-perform, at its option, the non-conforming or defective part of the System or Work. Subcontractor shall pay the
cost of removing any defective component and the cost of re-
performing, repairing, replacing or testing such item as shall be necessary to cause conformance
with the Subcontractor Warranty. The timing of the work to be completed with respect
to any such remediation or repair shall be subject to Contractor’s reasonable approval (but must
not prejudice Subcontractor’s ability to repair or replace the defective part or re-perform the
defective Work or materially increase the Subcontractor’s costs with respect thereto). Such remediation
or repair shall be considered complete when the applicable defect or Work has been corrected
by the affected equipment or parts being restored to Specifications. With respect to the
Defect Warranty, all repaired or replaced parts shall have an additional warranty equal to
the longer of (a) the unexpired term of the warranty period with respect to the Defect Warranty
specified in this Section 11 or (b) one (1) year.


 






    	43



    	 



    

 


ARTICLE
12

CONFIDENTIALITY AND PUBLICITY


 


12.1       Confidentiality.
The Parties hereby agree that neither Party receiving Confidential
Information (the “Receiving Party”) disclosed by the other Party (the “Disclosing
Party”) shall use for any purpose, other than the performance of the Work under this Agreement and
the use and operation of the System or any part thereof, or divulge, disclose, produce, publish,
or permit access to, without the prior written consent of the Disclosing Party, any Confidential
Information of the Disclosing Party. “Confidential Information” includes, without limitation,
this Agreement and exhibits hereto, all information or materials prepared in connection with the Work
performed under this or any related subsequent agreement, designs, drawings,
specifications, techniques, models, data, documentation, source code, object code, diagrams,
flow charts, research, development, processes, procedures, know how, manufacturing, development
or marketing techniques and materials, development or marketing timetables, strategies and development plans,
customer, supplier or personnel names and other information related to customers, suppliers or other personnel, pricing
policies and financial information, and other
information of a similar nature, whether or not reduced to writing or other tangible form, and
any other trade secrets. Confidential Information does not include (a) information known to the
Receiving Party prior to obtaining the same from the Disclosing Party; (b) information in the public
domain at the time of disclosure by the Receiving Party or any time thereafter; or (c)
information obtained by the Receiving Party from a third party who to the Receiving Party’s knowledge
did not receive same, directly or indirectly, from the Disclosing Party. The Receiving Party
shall use the higher of the standard of care that the Receiving Party uses to preserve its own
confidential information or a reasonable standard of care to prevent unauthorized use or disclosure
of such Confidential Information. Notwithstanding anything herein to the contrary, the
Receiving Party has the right to disclose Confidential Information without the prior written consent
of the Disclosing Party: (i) as required by any court or other Governmental Authority, or
by any stock exchange the shares of any Party are listed on; (ii) as otherwise required by Applicable
Law; (iii) as advisable or required in connection with any government or regulatory filings,
including filings with any regulating authorities covering the relevant financial markets and
applications and other filings under Section 2.6; (iv) to its attorneys, accountants, financial advisors or other agents, in
each case bound by confidentiality obligations; (v) to banks, investors and
other financing sources (including potential financing sources) and their advisors, in each case
bound by confidentiality obligations; or (vi) in connection with an actual or prospective merger
or acquisition or similar transaction where the party receiving the Confidential Information
is bound by the same or similar confidentiality obligations. If a Receiving Party believes
that it will be compelled by a court or other Governmental Authority to disclose Confidential Information of the Disclosing
Party, it shall give the Disclosing Party prompt written notice to the extent legally
permissible so that the Disclosing Party may determine whether to take steps to
oppose such disclosure.


 






    	44



    	 



    

 


12.2        
Publicity. The Parties shall jointly agree upon the necessity and content of any press
release in connection with the matters contemplated by this Agreement. Subcontractor shall coordinate
with Contractor with respect to, and provide Contractor advance copies of the text of, any proposed announcement or publication
that may include any non-public information concerning the Work prior to the dissemination
thereof to the public or to any Person other than Subcontractors, Suppliers or advisors
of Subcontractor, in each case, who agree to keep such information confidential.


 


ARTICLE
13

MISCELLANEOUS


 


13.1        
Notices. All Notices required or permitted under the Contract Documents shall be
in writing and shall be deemed given: (a) when delivered in person; (b) the next Business Day after deposit with a commercial
overnight delivery service for next Business Day delivery; or (c) upon
receipt if sent by United States mail, postage prepaid, registered or certified mail, return receipt requested. All Notices shall
be addressed to the recipient party at the address set forth on the
first page to this Agreement or other address a party may designate in writing from time to
time.


 


13.2       
Independent Contractor. Subcontractor shall at all times be and remain an independent
contractor and not an agent of Contractor for any purpose whatsoever and shall have no
authority to create or assume any obligation, express or implied, in the name of or on behalf of
Contractor or to bind Contractor in any manner whatsoever.


 


13.3     
Authorized Representatives. Each Party shall designate one or more representatives
authorized to act on behalf of the designating Party. If a Party designates more than
one authorized representative, it shall specify the nature of the communications for which each
representative is authorized to act on the designating Party’s behalf.


 


13.4         
Entire Agreement; Amendment. This Agreement, including the Exhibits hereto, represents
the entire and integrated agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior negotiations, representations or agreements, either written
or oral. No Amendment, modification or waiver in respect of this Agreement will be effective
unless in writing and executed by both Parties.


 


13.5        
Assignment. Neither Party shall assign or delegate its rights or obligations under this
Agreement without the prior written consent of the other Party, such consent to be in its sole discretion;
provided, however, that either Party may assign this Agreement to an affiliate with the
prior written consent of the other Party, such consent not to be unreasonably withheld or delayed
(but any such assignment shall not relieve Subcontractor or Contractor of any of its obligations
hereunder). In no event shall either Party assign this Agreement without also assigning the
O&M Agreement in the same manner and to the same assignee. In determining whether
to consent to any assignment, each Party shall be entitled to consider the experience, reputation
and creditworthiness of the proposed assignee or other transferee. Subject to the foregoing,
this Agreement shall be binding on and shall inure to the benefit of the Parties and their
respective successors and assigns. The subcontracting of any part of the Work by Subcontractor
shall not be deemed an assignment of this Agreement. In addition, Contractor may, without
the consent of Subcontractor, collaterally assign its rights, title and interest under this Agreement
to any Contractor Financing Party, who, subject to any consent entered into by Subcontractor
with the Contractor Financing Party, may further assign such rights, title and interest
under this Agreement upon exercise of foreclosure or similar remedies by the Contractor Financing
Party following a default by Contractor under the financing arrangements entered into between
Contractor and the Contractor Financing Party. Any Party assigning this Agreement as set
forth in this Section 13.5 shall deliver notice of such assignment to the other Party as soon as reasonably
practicable. Subcontractor agrees to execute and deliver a reasonable estoppel certificate
or consent to collateral assignment of the Agreement requested by any Contractor Financing
Party on reasonably acceptable terms.


 






    	45



    	 



    

 


13.6         
No Waiver. No failure on the part of either Party to exercise or enforce any term hereof
or any right hereunder shall operate as a waiver, release or relinquishment of any right or power
conferred under this Agreement.


 


13.7        
Survival. Cancellation, expiration, or earlier termination of this Agreement shall not relieve the Parties of obligations
that by their nature should survive such cancellation, expiration,
or termination (including any representations or warranties).


 


13.8     
Governing Law. The formation, interpretation and performance of this Agreement
shall be governed by and construed in accordance with the laws of the State of North Carolina. 


 


13.9        
Dispute Resolution.


 


(a)       Good
Faith Negotiations. In the event that any question, dispute, difference
or claim arises out of or in connection with this Agreement, including any question regarding
its existence, validity, performance or termination (a “Dispute”), which either Party has
notified to the other, senior management personnel from both Subcontractor and Contractor shall
meet and diligently attempt in good faith to resolve the Dispute for a period of thirty (30) days
following one Party’s written request to the other Party for such a meeting. If, however, either
Party refuses or fails to so meet, or the Dispute is not resolved by negotiation, the provisions of
Section 13.9(b) shall apply.


 


(b)       Arbitration.
If the parties fail to resolve the Dispute in accordance with Section
13.9(a) above, the Parties shall try in good faith to settle the Dispute by mediation. If the mediation
is unsuccessful, such dispute shall be resolved by binding arbitration administered by the
AAA under its Construction Industry Arbitration
Rules, and judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. There shall be a single neutral arbitrator selected as follows: within
twenty (20) days after the AAA serves the confirmation of notice of filing of the arbitration
demand, the Parties shall agree on the appointment of a single neutral arbitrator and so
notify the AAA. If the Parties fail to agree on the appointment of a single neutral arbitrator within that time period, and have
not otherwise mutually agreed to extend that time period, then the
AAA shall make the appointment. The arbitration hearing shall be held in any venue per mutual decision between the parties hereto.


 


(c)       Venue.
The Parties agree that the federal courts of the United States of America
or the courts of the State of North Carolina shall have jurisdiction to hear any action to compel
arbitration or any other judicial proceedings with respect to this Agreement.


 


(d)       Continuance
of Work. During the pendency of any dispute arising under this Agreement, unless otherwise agreed between the Parties, Subcontractor
shall continue to perform the Work and its
other obligations in accordance with this Agreement. Contractor shall continue
to pay undisputed amounts to Subcontractor.


 






    	46



    	 



    

 


13.10      
WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING BROUGHT TO ENFORCE OR
INTERPRET THIS AGREEMENT. Each Party (i) certifies that no representative of the other
Party has represented, expressly or otherwise, that such other Party would not, in the event of
litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other Party
has been induced to enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section 13.10.


 


13.11       
Execution in Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same instrument.


 


13.12     
Ownership of Designs. All drawings, specifications, calculations, data, notes and
other materials and documents, including electronic data prepared by or furnished by Subcontractor to Contractor under this Agreement
(“Work Product”) are the instruments of service
of Subcontractor and Contractor will retain all common law, statutory and other
reserved rights, including copyrights and remain the property of Subcontractor. Subcontractor
grants a license to Contract, as set forth below in Section 13.14


 


13.13       
Final Drawings. Upon Final Completion and Contractor’s payment in full for all Work
performed under this Agreement, Subcontractor shall deliver to Contractor a copy of the final
record drawings for the System.


 


13.14     
Contractor’s Limited License upon Payment in Full. Subcontractor hereby grants
Contractor, and its successors and assigns, a paid-up, irrevocable, perpetual, royalty-free limited
license to use the Work Product in connection with Contractor’s operation, maintenance and repair of the System (assignable
to Owner’s successors in interest). The Parties agree that the limited license to
use the Work Product granted hereunder will provide Contractor sufficient rights in
and to the Work Product as will be necessary for Contractor to operate, maintain and repair the System. The license granted under
this Section is only valid for use in relation to the System at the Site and this provision does not permit Contractor to use
subcontractor’s intellectual property in relation to any other project or photovoltaic
system. No other license in the Work Product is granted pursuant to this Agreement. Subcontractor agrees that
Contractor may collaterally assign the license granted to Contractor in this Section 13.14 to
Contractor Financing Parties as security for financial accommodations provided to Contractor.


 






    	47



    	 



    

 


IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as
of the Effective Date by their duly authorized representatives.


 


	PANASONIC ENTERPRISE SOLUTIONS	 	 
	COMPANY, DIVISION OF PANASONIC	 	GREEN EARTH DEVELOPERS LLC.
	CORPORATION OF NORTH AMERICA	 	 
	 	 	 
	By:	 	 	By:	 
	 	 	 
	Name: 	Ruben Dagstanyan	 	Name: 	William Morro
	 	 	 
	Title: 	Vice President	 	Title: 	Manager




 


 48